                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            DEC 08 2010
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                             FOR THE NINTH CIRCUIT



NARINDER SINGH; KULWANT                          No. 06-72475
KAUR; SANDEEP SINGH; NAVNEET
SINGH,                                           Agency Nos. A070-669-362
                                                             A070-669-363
              Petitioners,                                   A070-669-364
                                                             A070-669-365
  v.

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

              Respondent.



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

                     Argued and Submitted November 2, 2010
                            San Francisco, California

Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Petitioners Narinder Singh, Kulwant Kaur, Sandeep Singh, and Navneet

Singh (collectively, “Petitioners”),1 citizens of India, petition for review of the final

order of the Board of Immigrations Appeals (the “BIA”) denying their motion to

reopen based on allegedly new, material evidence undiscoverable at the time of his

deportation hearing. Because the BIA did not abuse its discretion in denying

Petitioners’ motion to reopen, the petition is DENIED.

                                  Standard of Review

      This court has jurisdiction over Petitioners’ petition for review pursuant to 8

U.S.C. § 1252.2 We review BIA rulings on motions to reopen for abuse of

discretion and will reverse only if the BIA acted arbitrarily, irrationally, or contrary

to law. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review

factual findings for substantial evidence and questions of law de novo. Id. at

791–92.

      1
          This memorandum refers to Petitioners collectively. Petitioners are
husband and wife, along with their two children, and their motion to reopen claims
for relief and protection all derive from Narinder Singh.
      2
        Petitioners contend that the pre-Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (“IIRIRA”) regulations concerning motions to reopen
should apply to their case because Petitioners’ order to show cause, initiating
removal proceedings, was issued prior to the April 1, 1997 effective date of
IIRIRA. With respect to this court’s jurisdiction, Petitioners concede that pursuant
to the REAL ID Act of 2005 (the “REAL ID Act”), this court’s jurisdiction is now
based on 8 U.S.C. § 1252 rather than pre-IIRIRA 8 U.S.C. § 1105a(a); see also
Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005). Regardless, as Petitioners
also concede, this court’s standard of review for motions to reopen remains the
same.

                                            2
                                         Analysis

         A. Both The Pre-IRRIRA Standard And 8 C.F.R. § 1003.2 Require

Evidence That Is Material And Not Available At The Former Hearing

         As Petitioners conceded at oral argument, any distinction between the pre-

IRRIRA standard and 8 C.F.R. § 1003.2 is of no consequence in this case, as both

require that the evidence sought to be offered for a motion to reopen is material and

was not available at the hearing before the Immigration Judge (IJ).

         In making such a determination, “the BIA is obligated to consider and

address in its entirety the evidence submitted by a petitioner.” Mohammed, 400

F.3d at 793 (citation omitted). However, it is the alien who bears the burden of

overcoming a presumption that the BIA did consider all of the record evidence in

reaching a finding. See Fernandez v. Gonzales, 439 F.3d 592, 603–04 (9th Cir.

2006).

         B. Substantial Evidence Supports The BIA’s Conclusion That Evidence In

Support of Petitioner’s Motion to Reopen Was Either Not Unavailable or Not

Material

       Substantial evidence supports the BIA’s conclusion that the evidence in

support of Petitioners’ motion to reopen was either available or not material. The

majority of Petitioners’ proffered “new” evidence is comprised of various affidavits




                                           3
and declarations, all of which provide information that was either available at the

time of the initial hearing or is not material.

       First, Exhibit C is an undated affidavit from Kabal Singh. An affidavit

apparently from the same individual, although his name was spelled slightly

differently, was in the record before the IJ in Petitioners’ original deportation

proceeding. Next, Exhibit D is an affidavit provided by Narinder Singh’s mother

offered to rebut the BIA’s conclusion that she had lived in India for eleven years, as

of 2003, without incident, which was also available at the time of Petitioners’

hearing before the IJ since Narinder Singh was in contact with his mother

throughout that time. Third, the information in Kulwant Kaur’s declaration, Exhibit

E, was clearly available during the deportation hearing because, as Narinder Singh’s

wife and a co-petitioner, she was present during the hearing and could have testified.

Exhibit F, an affidavit of Baljinder Singh, dated June 17, 2005, repeated information

in Narinder Singh’s mother’s affidavit that was available at the hearing. Exhibit G,

an affidavit from Narinder Singh himself, dated December 1, 2005, also contains

information that was available at the time of his deportation hearing.

      Further, the information in Petitioners’ other “new” evidence, consisting of

documents written by various non-governmental organizations, dated from 2003 to

2005, provide general background information of the then-current country

conditions in India. This evidence is not material, as the documents detail the same


                                             4
conditions that Petitioners describe experiencing in India before their departure in

1992. Accordingly, the BIA properly denied Petitioners’ motion to reopen, as all of

Petitioners’ proffered “new” evidence was either available at the time of the former

hearing or immaterial. See Matter of Coelho, 20 I & N. Dec. 464, 472 (1992)

(“[T]he Board must deny a motion to reopen in the absence of previously

unavailable, material evidence.”).

      PETITION DENIED.




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