                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 28 2015

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



                             FOR THE NINTH CIRCUIT


RAJWINDER KAUR, AKA Rajwinder                    No. 12-70801
Atwal,
                                                 Agency No. A075-708-722
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted July 21, 2015**

Before:        CANBY, BEA, and MURGUIA, Circuit Judges.

      Rajwinder Kaur, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying her second motion to

reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen, and review de novo questions of law,

          *
             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).
including claims of due process violations due to ineffective assistance.

Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny the

petition for review.

      The BIA did not abuse its discretion in denying Kaur’s second motion to

reopen as time- and number-barred, where Kaur filed the motion over four years

after her order of removal became final, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i)

(motion to reopen must be filed within ninety days of final order of removal), and

where Kaur has not established that she was entitled to equitable tolling of the

filing deadline due to ineffective assistance of counsel, see Avagyan v. Holder, 646

F.3d 672, 679 (9th Cir. 2011) (deadline for filing motion to reopen can be

equitably tolled “when a petitioner is prevented from filing because of deception,

fraud, or error”). Accordingly, Kaur’s claim that her right to due process was

violated when the BIA declined to reopen her case fails. See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due

process claim).

      We reject Kaur’s contention that the BIA improperly required her to “litigate

the allegations of ineffective assistance of counsel.” See Reyes v. Ashcroft, 358

F.3d 592, 598-99 (9th Cir. 2004) (discussing requirement that counsel have




                                          2                                     12-70801
opportunity to respond to ineffective assistance claims raised in a motion to

reopen).

      In her opening brief, Kaur does not address, and therefore has waived any

challenge to, the BIA’s determination that she failed to demonstrate a material

change in circumstances in India sufficient to qualify for exceptions to the filing

limitations, and to the BIA’s decision not to exercise its sua sponte authority to

reopen the proceedings. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir.

2011) (a petitioner waives an issue by failing to raise it in the opening brief).

      PETITION FOR REVIEW DENIED.




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