                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                            SEP 08 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
DAVINDER KAUR,                                   No. 11-71886

              Petitioner,                        Agency No. A070-916-854

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted September 3, 2015**
                                Pasadena, California

Before: GRABER and WATFORD, Circuit Judges, and TUNHEIM,*** Chief
District Judge.

      Davinder Kaur, a native and citizen of India, petitions for review of the

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

        *
             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).
        ***
             The Honorable John R. Tunheim, Chief District Judge for the U.S.
District Court for the District of Minnesota, sitting by designation.
on ineffective assistance of counsel and changed circumstances. We have

jurisdiction under 8 U.S.C. § 1252(a)(2)(D). We review for abuse of discretion the

denial of a motion to reopen. Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.

2011). We deny the petition for review.

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

where she filed the motion more than six years after her removal order became

final, see 8 C.F.R. § 1003.2(c)(2), and she failed to establish the due diligence

required to warrant equitable tolling of the filing deadline, see Avagyan, 646 F.3d

at 679 (equitable tolling is available to a petitioner who is prevented from filing

because of deception, fraud, or error; and who exercised due diligence in

discovering such circumstances). A reasonable person in Kaur’s position would

have become suspicious of her attorney’s behavior well before six years had

expired, yet Kaur offers no evidence that she took any action to investigate her

attorney’s conduct or the status of her case. See id. (beginning the due diligence

analysis by asking “if (and when) a reasonable person in petitioner’s position

would suspect” fraud or error on the part of her attorney); see also Singh v.

Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007) (contrasting cases in which a

petitioner took action quickly after becoming suspicious of the attorney’s conduct




                                           2
with cases in which the petitioner waited months to take action after becoming

suspicious).

      The BIA also did not abuse its discretion in rejecting Kaur’s argument that

changed circumstances warrant reopening her case. See 8 C.F.R. § 1003.2(c)(3)(ii)

(stating that the “time and numerical limitations” on filing motions to reopen “shall

not apply to a motion to reopen proceedings . . . [t]o apply or reapply for asylum or

withholding of deportation based on changed circumstances arising in the country

of nationality or in the country to which deportation has been ordered, if such

evidence is material and was not available and could not have been discovered or

presented at the previous hearing”). When considering a motion to reopen

claiming changed circumstances, “[t]he critical question is . . . whether

circumstances have changed sufficiently that a petitioner who previously did not

have a legitimate claim for asylum now has a well-founded fear of future

persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). Kaur has not

shown that the BIA abused its discretion when it concluded that, although she has

alleged a change in her personal circumstances (i.e., her 2004 marriage to Darshan

Singh Sran, a permanent resident who was granted asylum), she has not alleged a

change in circumstances in her home country. Her reliance on appeal on language

from a different regulation to debate the definition of “changed circumstances,” 8


                                          3
C.F.R. § 1208.4(a)(4)(I), also does not compel us to conclude that the BIA abused

its considerable discretion.

      PETITION FOR REVIEW DENIED.




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