                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 24 2014

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



                            FOR THE NINTH CIRCUIT


SEEMA GUNDU,                                     No. 09-73764

              Petitioner,                        Agency No. A095-575-856

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

              Respondent.



SEEMA GUNDU, AKA Seema Vishist,                  No. 10-73113

              Petitioner,                        Agency No. A095-575-856

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



SEEMA GUNDU, AKA Seema Vishist,                  No. 11-73259

              Petitioner,                        Agency No. A095-575-856

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                    Argued and Submitted September 10, 2014
                            San Francisco, California

Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.

      Petitioner Seema Gundu seeks review of the Board of Immigration Appeals’

(“BIA”) decisions denying her applications for asylum, withholding of removal,

and protection under Article III of the Convention Against Torture (“CAT”), as

well as its denials of her two motions to reopen. We deny the petition on all of her

claims except her claim that the BIA abused its discretion in failing to address the

contention in her first motion to reopen filed January 25, 2010, that, if returned to

India, she would face violence from her former husband. We remand so that the

BIA can consider that claim.

      The case has had a long and convoluted history beginning with the

Immigration Judge’s (“IJ”) grant in 2004 of a government motion to pretermit on

the ground that she filed a false and frivolous asylum application. Because

Petitioner had never had an opportunity to timely respond to the claim of


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frivolousness, the BIA remanded. After considering the government’s renewed

motion and Petitioner’s written opposition, the IJ again pretermitted her asylum

application for frivolousness. The IJ further found she lacked credibility and

denied her withholding of removal and CAT applications.

      Petitioner argues that she was entitled to a hearing before the IJ deemed her

asylum application frivolous, but there is no such requirement where, as here, a

petitioner is given an opportunity to explain discrepancies at some point. See

Kulakchyan v. Holder, 730 F.3d 993, 996 (9th Cir. 2013) (holding that petitioner’s

brief in opposition to pretermission motion provided sufficient opportunity to

explain prior misrepresentations). Petitioner knowingly “filed” her asylum

application by signing it at her asylum interview, swearing to the truth of its

contents. Petitioner also cannot claim inadequate notice of the consequences of

filing a frivolous application because “written warning on the asylum application

adequately notifies the applicant of . . . the consequences of knowingly filing a

frivolous asylum application.” Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir.

2012).

      Although Petitioner’s opening brief challenges the adverse credibility

finding that supported the IJ’s denial of her withholding of removal and CAT

claims, Petitioner’s counsel commendably conceded the validity of the adverse


                                          3
credibility finding at oral argument. Counsel instead stressed at oral argument that

the BIA had misstated the record when it stated in its October 28, 2009, decision

that the IJ had considered domestic abuse allegations when it found the asylum

application was frivolous. But, that argument was not briefed, and contentions

raised for the first time at oral argument are waived. See Martinez-Serrano v. INS,

94 F.3d 1256, 1259–60 (9th Cir. 1996) (issues not specifically raised and argued in

a party’s opening brief are waived).

         In her first motion to reopen, Petitioner argued that her situation had

changed in that her former husband had returned to India and had threatened to

burn her alive if she were sent back. The BIA denied the motion without

addressing this argument, and we have held this to be an abuse of the BIA’s

discretion. See, e.g., Franco-Rosendo v. Gonzales, 454 F.3d 965, 966 (9th Cir.

2006). We therefore remand to the BIA for the limited purpose of considering this

claim.

         Finally, Petitioner argues that the BIA erred in holding that her second

motion to reopen was untimely and number-barred. We conclude Petitioner first

had reason to know of the ineffective assistance of counsel alleged in her second

motion to reopen when the BIA denied her appeal in 2009. See Avagyan v. Holder,

646 F.3d 672, 680 (9th Cir. 2011) (noting petitioner first has reason to suspect


                                             4
counsel’s deficient performance when an appeal prepared by that counsel is

denied). Nevertheless, Petitioner waited almost a year to retain new counsel and

then another several months to file her second motion to reopen. Because

Petitioner was not diligent in bringing her second motion to reopen, Petitioner was

not entitled to equitable tolling. The BIA therefore did not err by denying it as

untimely and number-barred. See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir.

2003) (holding equitable tolling requires petitioner to have acted with due

diligence in discovering error).

      Petition GRANTED in part and DENIED in part. The parties shall bear

their own costs.




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