                                                                               FILED
                             NOT FOR PUBLICATION                               OCT 30 2014

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



                             FOR THE NINTH CIRCUIT


KAVITA KOMAL; et al.,                            No. 11-70980

              Petitioners,                       Agency Nos.         A070-059-038
                                                                     A070-059-039
  v.                                                                 A070-059-040
                                                                     A071-787-248
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.                        MEMORANDUM*


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

                             Submitted October 8, 2014**
                                Pasadena, California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.

       In the 1990s, petitioners Kavita Komal (“Komal”) and her husband (both ethnic

Indian, Fijian citizens) claimed race-based persecution by native Fijians and filed for

asylum. Since then, petitioners have steadfastly sought administrative and judicial

review over their denied applications for asylum. Their first Immigration Judge (“IJ”)

        *
             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).
denied asylum, in part because the IJ made an adverse credibility determination from

inconsistencies in petitioners’ testimony surrounding the alleged rape of Komal by

native Fijians and the injuries suffered by Komal’s husband at the hands of those

rapists. The BIA affirmed, and this court denied the petition for review. The BIA

then granted petitioners’ unopposed motion to reopen;1 a second IJ denied asylum; the

BIA affirmed; and this court denied a second petition for review.

      On July 22, 2010, nearly three and a half years after the BIA’s December 27,

2007 denial of petitioners’ second appeal, Komal and her husband filed their second

motion to reopen, arguing that recent discovery of ineffective assistance of counsel

by two attorneys should equitably toll the time limit for what would ordinarily be an

untimely motion. Petitioners also argued that changed circumstances in Fiji warranted

the reopening of their case. The BIA denied the motion as untimely and held that

petitioners could not demonstrate individualized risk of persecution based on changed

circumstances. Now Komal and her husband seek review of the BIA’s denial of their

second motion to reopen. We review the BIA’s decision for abuse of discretion.

Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir. 2007) (citations omitted).

      1
         C.F.R. § 1003.2(c)(2) states a party “may file only one motion to reopen
deportation or exclusion proceedings (whether before the Board or the Immigration
Judge) and that motion must be filed no later than 90 days after the date on which
the final administrative decision was rendered in the proceeding sought to be
reopened.”

                                         -2-
      The BIA did not abuse its discretion when it held that the second motion to

reopen was untimely.      Petitioners could have timely pursued their ineffective

assistance of counsel claims with the attorneys who represented them subsequent to

the allegedly ineffective counsel (and whom petitioners do not claim provided

ineffective assistance of counsel). See Avagyan v. Holder, 646 F.3d 672, 680–81 (9th

Cir. 2011). Even if the motion was timely, petitioners’ claim lacks merit. Petitioners

now admit that Komal was never raped, and claim that it was (in part) ineffective

assistance of counsel by one of their attorneys to proffer that false testimony before

the first IJ and the earlier appeals before the BIA and the Ninth Circuit. Due to

petitioners’ lack of credibility, they failed to show prejudice. Torres-Chavez v.

Holder, 567 F.3d 1096, 1100 (9th Cir. 2009).

      The BIA also did not abuse its discretion when it held that petitioners’ proffered

evidence in support of the second motion to reopen did not establish individualized

risk of persecution. Our review of the administrative record shows that the BIA did

not act “arbitrarily, irrationally, or contrary to law.” Toufighi, 538 F.3d at 992

(citation omitted).

      The petition for review is DENIED.




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