                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 12 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BEANT SINGH,                                     No. 09-70211

              Petitioner,                        Agency No. A079-610-040

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted June 10, 2013**
                             San Francisco, California

Before: RIPPLE,*** FERNANDEZ, and CALLAHAN, Circuit Judges.

       Petitioner Beant Singh (“Singh”) challenges the Board of Immigration

Appeals’ (“BIA”) denial of his motion to reopen based on changed country



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
conditions. Singh contends that the BIA abused its discretion by denying his

motion because the BIA misunderstood the motion and failed to address his claim

under the Convention Against Torture (“CAT”). Singh contends that: (1) his case

should be reopened because of changed conditions in the country of India; (2) the

Immigration Judge (“IJ”) was biased; and (3) his due process rights were violated

because he did not receive notice of the ninety-day deadline for a motion to reopen.

      We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review the BIA’s

decision to deny Singh’s motion for abuse of discretion. Feng Gui Lin v. Holder,

588 F.3d 981, 984 (9th Cir. 2009). “Motions to reopen are discretionary and

disfavored.” Valeriano v. Gonzales, 474 F.3d 669, 672 (9th Cir. 2007) (footnote

reference and internal quotation marks omitted). “The decision of the BIA should

be left undisturbed unless it is arbitrary, irrational, or contrary to law.” Feng Gui

Lin, 588 F.3d at 984 (quoting He v. Gonzales, 501 F.3d 1128, 1131 (9th Cir.

2007)).

      To prevail on his motion to reopen, Singh must clear four hurdles: “(1) he

ha[s] to produce evidence that conditions had changed in [India]; (2) the evidence

ha[s] to be material; (3) the evidence must not have been available and would not

have been discovered or presented at the previous proceeding; and (4) he ha[s] to

demonstrate that the new evidence, when considered together with the evidence


                                           2
presented at the original hearing, would establish prima facie eligibility for the

relief sought.” Feng Gui Lin, 588 F.3d at 986 (internal quotation marks omitted).1

      1.     Singh contends that his case should be reopened because he has

shown changed circumstances in India. The BIA reasonably determined that Singh

failed to present any evidence to support his claim of changed circumstances.

Although Singh presented the BIA with numerous articles and reports discussing

the conditions in India, the submissions state that the conditions have been

consistent for the past few decades and are part of a long standing practice. Thus,

Singh has failed to establish changed country conditions within India.

      Furthermore, even if Singh could show changed circumstances, he fails to

meet the fourth requirement because he has not “demonstrate[d] that the new

evidence, when considered together with the evidence presented at the original

hearing, would establish prima facie eligibility for the relief sought.” Feng Gui

Lin, 588 F.3d at 986. Singh’s claim for asylum is not viable because the IJ made

an adverse credibility finding, and Singh failed to seek judicial review of the BIA’s

affirmance of the adverse credibility finding. See Toufighi v. Mukasey, 538 F.3d

988, 995 (9th Cir. 2008) (holding that the Ninth Circuit could not review a



      1
             Because the parties are familiar with the facts and procedural history,
we restate them here only as necessary to explain our decision.
                                           3
previous IJ’s decision because the petitioner had failed to seek timely review of the

IJ’s decision). Moreover, Singh has failed to make a prima facie showing of the

possibility of torture necessary for relief under the CAT. See Cole v. Holder, 659

F.3d 762, 771 (9th Cir. 2011) (defining acts constituting torture under the CAT).

      2.     Singh’s contention that the IJ was biased is not properly before this

Court because: (a) the BIA rejected this claim in its 2005 decision; (b) Singh did

not seek judicial review of the BIA’s decision; and (c) Singh has not proffered any

new evidence to support his claim. Our jurisdiction is limited to review of the

BIA’s Order of December 22, 2008, denying Singh’s motion to reopen. See

Toufighi, 538 F.3d at 995.

      3.     Singh’s contention that his due process rights were violated because

he did not receive actual notice of the ninety-day motion to reopen deadline is not

well taken. See Luna v. Holder, 659 F.3d 753, 759 (9th Cir. 2011) (finding that all

aliens presumptively have been given notice of a deadline to file a motion to

reopen to where the law has been enacted by Congress and the regulation has been

published in Federal Register). Moreover, Singh’s motion to reopen based on

changed country conditions was not subject to the ninety-day deadline. See 8

U.S.C. §1229a(c)(7)(C)(ii).




                                          4
     For the foregoing reasons, Singh’s petition for review of the BIA’s denial of

his motion to reopen is DENIED.




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