Opinion
17-73192
09-06-2022
AMARDEEP SINGH PALAHA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted September 1, 2022 [**] Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A089-299-994
Before: McKEOWN and GOULD, Circuit Judges, and RAKOFF, [***] District Judge.
MEMORANDUM [*]
Petitioner Amardeep Singh Palaha seeks review of the decision by the Board of Immigration Appeals (the "BIA") denying his motion to reopen his immigration proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review the BIA's denials of motions to reopen removal proceedings for abuse of discretion. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We review de novo claims that the BIA violated due process in removal proceedings. Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). We deny the petition for review.
In 2011, an Immigration Judge denied Palaha's application for asylum, withholding of removal, and protection under the Convention Against Torture. The BIA dismissed Palaha's appeal of this decision, and we denied Palaha's petition for review of the BIA's decision, Palaha v. Lynch, 671 Fed.Appx. 417 (9th Cir. 2016). In April 2017, Palaha filed an untimely motion to reopen proceedings with the BIA. In his motion, Palaha asserted that changed country conditions in India excused his untimely filing. The BIA denied Palaha's motion to reopen in November 2017, determining that Palaha did not demonstrate changed country conditions in India. This timely petition for review followed. We conclude that there was no error warranting relief in the BIA's determination.
We need not and do not reach Palaha's additional argument that the BIA erred in determining that he did not establish prima facie eligibility for relief. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
Ordinarily, a motion to reopen must be filed "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(C)(i); see also id. § 1229a(c)(7)(A). However, a later motion may be filed if, inter alia, the purpose of the motion is to apply for asylum or withholding of removal based on "changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
Palaha argues first that the BIA abused its discretion in applying a "heavy burden" standard to his motion. However, the BIA's application of this standard accords with our precedent. See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008).
Second, Palaha contends that the BIA abused its discretion in concluding that Palaha did not establish materially changed country conditions. We disagree. In support of his motion to reopen, Palaha relied on (1) declarations and photographic evidence from members of his family alleging that Indian police and Congress Party members had come to the family home and searched for Palaha; (2) an expert report from a professor concerning recent developments in India; and (3) country condition news articles and reports. The BIA acted within its discretion when it reasonably concluded that Palaha's evidence did not establish that conditions in India had materially changed from the time of his original immigration proceedings.
Third, Palaha urges that the BIA abused its discretion and violated due process by taking administrative notice of a 2016 United States Department of State report on India without giving Palaha notice that it was doing so and providing him with an opportunity to rebut its contents. We need not address whether it was proper for the BIA to take such notice because Palaha suffered no prejudice from the BIA's decision to do so. The BIA concluded independently of this report that Palaha had not established changed country conditions. The BIA noted only that the State Department report likewise "d[id] not support [Palaha's] contention that government authorities target [ADM] members." Palaha suffered no prejudice from the BIA's administrative notice of the report.
Finally, Palaha argues that the BIA abused its discretion and violated due process by failing to consider all the evidence presented in his motion to reopen. However, Palaha has not "overcome the presumption that [the BIA] did review evidence." Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir. 2000). To the contrary, the BIA acknowledged correctly that Palaha "submitted affidavits from his parents and brother, a professor's statement, and Internet-based news articles describing background conditions in India." The BIA concluded that this "evidence d[id] not demonstrate a change in India […] material to [Palaha's] claims." That is sufficient under our precedent. See Larita-Martinez, 220 F.3d at 1096.
The petition for review is DENIED.
[*] 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).
[***] The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.