                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 14 2017

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



                            FOR THE NINTH CIRCUIT


KAMALDEEP KAUR SANDHU,                           No.   15-73032

              Petitioner,                        Agency No. A075-695-238

 v.
                                                 MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

              Respondent.


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

                            Submitted March 8, 2017**

Before:      LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

      Kamaldeep Kaur Sandhu, a native and citizen of India, petitions for review

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

removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen. Lin v. Holder, 588 F.3d

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
981, 984 (9th Cir. 2009). We deny in part and dismiss in part the petition for

review.

      The BIA did not abuse its discretion in denying Sandhu’s motion to reopen

as untimely, where the motion was filed eight years after her final order of

removal, see 8 C.F.R. § 1003.2(c)(2), and she did not demonstrate the due

diligence necessary for equitable tolling of the filing deadline, see Avagyan v.

Holder, 646 F.3d 672, 679 (9th Cir. 2011) (equitable tolling is available to an alien

who is prevented from filing a motion to reopen due to deception, fraud, or error,

as long as the alien exercises due diligence in discovering such circumstances).

Sandhu’s contentions regarding Toor v. Lynch, 789 F.3d 1055 (9th Cir. 2015), are

unavailing.

      We reject Sandhu’s contentions that the BIA failed to consider evidence and

arguments presented in her motion, or insufficiently explained its decision. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (the agency must “merely

. . . announce its decision in terms sufficient to enable a reviewing court to perceive

that it has heard and thought and not merely reacted” (citation and quotation marks

omitted)).

      We do not consider the new evidence referenced in Sandhu’s opening brief

regarding a FOIA request. See 8 U.S.C. § 1252(b)(4)(A) (judicial review is limited


                                           2                                     15-73032
to the administrative record); Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010)

(stating standard for review of out-of-record evidence).

       We lack jurisdiction to review the BIA’s discretionary decision not to reopen

proceedings sua sponte. See Mejia-Hernandez v. Holder, 633 F.3d 818, 823-24

(9th Cir. 2011); cf. Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his

court has jurisdiction to review Board decisions denying sua sponte reopening for

the limited purpose of reviewing the reasoning behind the decisions for legal or

constitutional error.”). Sandhu has waived her contention that the BIA failed to

address her contention that a change in law warranted sua sponte reopening. See

Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not raised in an

opening brief are waived).

       In light of our disposition, we do not reach Sandhu’s remaining contentions

regarding the alleged ineffective assistance of prior counsel, her compliance with

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), or her

eligibility for relief.

       PETITION FOR REVIEW DENIED in part, DISMISSED in part.




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