                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        SEP 19 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

AVTAR SINGH,                                    No.    17-70246

                Petitioner,                     Agency No. A070-530-104

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

                Respondent.

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

                          Submitted September 12, 2018**


Before:      LEAVY, HAWKINS, and TALLMAN, Circuit Judges

      Avtar Singh, a native and citizen of India, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order denying of his motion to reopen removal

proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of

discretion the denial of a motion to reopen. Martinez-Hernandez v. Holder, 778


      *
             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).
F.3d 1086, 1088 (9th Cir. 2015). We review de novo claims of due process

violations. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We

deny the petition for review.

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

untimely, where it was filed more than 90 days after his final order of removal, see

8 U.S.C. § 1229a(c)(7)(C)(i), 8 C.F.R. § 1003.2(c)(2), and he did not demonstrate

he met any exception to the filing deadline, see 8 U.S.C. § 1229a(c)(7)(C)(ii)-(iv),

8 C.F.R. § 1003.2(c)(3).

      To the extent Singh contends the 90-day time limit violates due process

because it prevents him from applying for adjustment of status based on events that

occurred more than 90 days after his final order of removal, he has not shown the

deadline violates a fundamental right. See Gebhardt v. Nielsen, 879 F.3d 980, 988

(9th Cir. 2018) (the generic right to live with one’s family is “far removed” from

the specific right of United States citizens to live in the United States with non-

citizen family members; a non-citizen’s deportation does not violate the

substantive due process rights of a citizen family); Padilla-Martinez, 770 F.3d at

830 (“To prevail on a due-process claim, a petitioner must demonstrate both a

violation of rights and prejudice.”). Singh’s reliance on Kerry v. Din, 135 S. Ct.

2128 (2015), is not persuasive, where that decision does not establish an alien has a

fundamental right to remain in the United States with his family. See id. at 2131-39


                                           2                                    17-70246
(determining there was no deprivation of “life, liberty, or property” in denying a

visa to a citizen’s spouse (Scalia, J., plurality opinion); even assuming a protected

liberty interest, the citizen received proper process (Kennedy, J., concurring)).

      Our jurisdiction to review the BIA’s discretionary decision not to reopen

proceedings sua sponte is limited to contentions of legal or constitutional error. See

Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). The BIA applied the correct

“exceptional circumstances” standard, and Singh has not shown that the BIA failed

to follow controlling law.

      PETITION FOR REVIEW DENIED.




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