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


8-15-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3436




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-3436
                                   ________________

                                   GURMAIL KAUR,
                                                               Petitioner

                                             v.

                             ATTORNEY GENERAL OF
                               THE UNITED STATES
                       ____________________________________

                       On Petition for Review of a Decision of the
                            Board of Immigration Appeals
                               (Agency No. A70 698 232)
                     _______________________________________


                       Submitted Under Third Circuit LAR 34.1(a)
                                   August 12, 2005

 BEFORE: VAN ANTWERPEN, GREENBERG and NYGAARD, CIRCUIT JUDGES

                                (Filed: August 15, 2005)
                               _______________________

                                      OPINION
                               _______________________


PER CURIAM

       Gurmail Kaur, a citizen of India, petitions for review of an order of the Board of

Immigration Appeals (BIA), denying her second motion to reopen proceedings. For the

following reasons, we will deny the petition.
       Kaur entered the United States without valid documents in 1992 through Mexico.

In 1998, an immigration judge found Kaur removable and denied her applications for

asylum and other relief. The BIA affirmed without opinion on June 4, 2002. Kaur did

not petition this Court to review the final order of removal. Kaur filed her first motion to

reopen proceedings in June 2003, which the BIA denied as untimely in October 2003.

We dismissed Kaur’s petition for review of that order for failure to prosecute. Kaur v.

Ashcroft, No. 03-4284 (3d Cir. Mar. 10, 2004). Kaur filed the current motion to reopen

proceedings in June 2004, which the BIA denied as untimely and exceeding the numerical

limitations. Kaur petitions for review.

       We have jurisdiction to review the BIA’s order denying Kaur’s second motion to

reopen.1 We review the BIA’s denial of a motion to reopen for abuse of discretion with

“broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003). 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).

The BIA in turn has broad discretion to deny a motion to reopen. See Lu v. Ashcroft, 259

F.3d 127, 131 (3d Cir. 2001). The applicable regulation provides that the BIA “has

discretion to deny a motion to reopen even if the party moving has made out a prima facie

case for relief.” 8 C.F.R. § 1003.2(a).



   1
    The only order currently subject to our review is the order denying Kaur’s second
motion to reopen. See Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). Thus, we
cannot consider her argument that the IJ and BIA wrongly denied her application for
asylum.

                                             2
       An alien may file only one motion to reopen, and it must be filed no later than

ninety days after the date on which the final administrative decision was rendered. See 8

C.F.R. § 1003.2(c)(2). These “time and numerical limitations” do not apply to a motion

to reopen to apply for asylum based on changed circumstances arising in the country of

removal, “if such evidence is material and was not available and could not have been

discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the

BIA specifically considered whether Kaur’s second motion to reopen could be heard

under this exception, but concluded that she had failed to present evidence of changed

circumstances in India to satisfy the exception.

       We agree completely that Kaur’s second motion to reopen exceeded the time and

numerical limitations, and that she failed to present any evidence of changed

circumstances in India for the purpose of overcoming these limitations. In her brief, Kaur

challenges the denial of asylum and other relief, but she offers no reason to question the

BIA’s decision denying her second motion to reopen.

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

Kaur’s second motion to reopen. Accordingly, we will deny the petition for review.




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