                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2005

Kaur v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1508




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1508
                                   ________________

                                  JASWINDER KAUR,
                                                Petitioner,

                                            v.

         ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA
                 ____________________________________

                            On Review of a Decision of the
                            Board of Immigration Appeals
                              (Agency No. A73 647 668)
                     _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                   August 19, 2005

             Before: RENDELL, AMBRO and FUENTES, Circuit Judges

                                (Filed: August 30, 2005)
                               _______________________

                                      OPINION
                               _______________________


PER CURIAM

       Jaswinder Kaur, a citizen of India, seeks review of an order of the Board of

Immigration Appeals (“BIA”), denying her motion to reopen, which the BIA treated as a

motion for reconsideration. For the reasons that follow, we will deny the petition.
       Kaur entered the United States through Canada in 1994 without valid documents.

In 1997, the Government charged Kaur with deportability on this ground. Kaur conceded

deportability before an immigration judge (“IJ”) and applied for asylum and withholding

of removal based on her fear of persecution as a Sikh. The IJ denied her applications for

relief but granted her voluntary departure within ninety days. Rather than voluntarily

depart, Kaur appealed to the BIA, which dismissed her appeal as untimely on December

9, 1998.

       In 1999, Kaur moved the IJ to reopen proceedings to apply for relief under the

Convention Against Torture (“CAT”). The IJ ruled that Kaur had failed to establish a

prima facie case for CAT relief, and denied the motion to reopen. Again the BIA

affirmed. The BIA also denied Kaur’s two subsequent motions to reopen proceedings.

We denied her petition for review of the BIA’s November 20, 2003 order denying her

second motion to reopen. Kaur v. Ashcroft, No. 03-1917 (3d Cir. Nov. 9, 2004).

       On December 8, 2004, Kaur returned to the BIA and filed a motion to reopen,

again expressing her fear of persecution if returned to India. The BIA treated Kaur’s

motion as one seeking reconsideration of its November 20, 2003 order and denied it as

untimely. Kaur timely petitions for review of that order.

       Why the BIA treated Kaur’s motion to reopen as a motion to reconsider is unclear.

A motion to the BIA to reconsider “shall state the reasons for the motion by specifying

the errors of fact or law in the prior Board decision and shall be supported by pertinent



                                             2
authority.” 8 C.F.R. § 1003.2(b)(1). Kaur’s motion to reopen does not even reference the

BIA’s prior decision, much less specify any errors in it. Rather, Kaur’s motion to reopen

alleges changed country conditions in India, which is a proper basis for filing a motion to

reopen. See 8 C.F.R. 1003.2(c)(3)(ii).

       Regardless, we review the BIA’s order for abuse of discretion with “broad

deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003); see

INS v. Doherty, 502 U.S. 314, 323 (1992) (noting the broad deference due the BIA’s

decision). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary,

irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).1

       Generally, a motion to reopen must be filed no later than ninety days after the date

on which the final administrative decision was rendered in the proceeding sought to be

reopened. 8 C.F.R. § 1003.2(c)(2); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 473-74 (3d

Cir. 2003). The time limitation does not apply to a motion to reopen proceedings to apply

for asylum or withholding of removal based on changed circumstances in the country to

which removal has been ordered, provided the evidence of changed circumstances is

material, was not available, and could not have been presented at the previous hearing.

See 8 C.F.R. § 1003.2(c)(3)(ii); Johnson v. Ashcroft, 286 F.3d 696, 704 n.8 (3d Cir.

   1
       The Government correctly notes that Kaur’s brief does not address how the BIA
abused its discretion in denying her motion as untimely. Her brief argues only that she
has wrongly been denied asylum and withholding of removal. We cannot consider this
argument, however, because the only order currently subject to our review is the order
denying Kaur’s motion to reopen as untimely. See Nocon v. INS, 789 F.2d 1028, 1033
(3d Cir. 1986).

                                              3
2002).

         Here, while Kaur’s motion alleges that conditions in India have changed, she

provides no evidence whatsoever to support this allegation. Without such evidence, she

cannot overcome the ninety-day time bar. Her motion to reopen, filed in December 2004,

was filed years after her order of removal became final. Thus, the BIA did not abuse its

discretion in ruling that Kaur’s motion to reopen was untimely.2

         In sum, we find no basis to conclude that the BIA abused its discretion in denying

Kaur’s motion as untimely, whether treated as a motion to reopen or to reconsider.

Accordingly, we will deny her petition for review.




   2
       Likewise, treated as a motion to reconsider, Kaur’s motion would be untimely. A
motion to reconsider must be filed within thirty days of the BIA’s prior order. See 8
C.F.R. § 1003.2(b)(2). Kaur’s motion filed in December 2004 was filed more than one
year after the BIA’s prior order of November 20, 2003.

                                              4
