Singh v. Garland

1

KULVINDER SINGH, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.

No. 18-70226

United States Court of Appeals, Ninth Circuit

May 19, 2022

NOT FOR PUBLICATION

Submitted April 11, 2022 ^[**] San Francisco, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A075-245-991

Before: SILER, ^[***] M. SMITH, and BRESS, Circuit Judges.

MEMORANDUM ^[*]

Kulvinder Singh petitions for review of the Board of Immigration Appeals' (BIA) denial of his motion to reopen his immigration proceedings based on changed country conditions. Singh was last before an immigration judge (IJ) in 2004 for a hearing in which Singh had sought adjustment of status. The IJ denied his application and ordered him removed to India. In 2017, Singh filed the present motion to reopen, alleging changed circumstances in India regarding the treatment of Sikhs who advocate for an independent Sikh state, Khalistan. He offered evidence that he was affiliated with the Shiromani Akali Dal Amritsar, a pro-Khalistan political party, and argued that, as a result he would be persecuted or tortured if removed to India. Because the BIA did not abuse its discretion when it found that Singh failed to show a material change in country conditions, we DENY the petition.

We review the BIA's denial of a motion to reopen for abuse of discretion, and maty grant relief if the agency "acts arbitrarily, irrationally, or contrary to the law, and when it fails to provide a reasoned explanation for its actions." Hernandez-Galand v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021). We review any factual findings for substantial evidence, leaving them undisturbed "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

A motion to reopen to apply for asylum, withholding of removal, and/or protection under the Convention Against Torture, based on changed country conditions that could not have been discovered or presented at the prior hearing, may be filed at any time. Agonafer v. Sessions, 859 F.3d 1198, 1203-04 (9th Cir. 2017).

Therefore, Singh's motion is timely, and we must review the BIA's denial of that motion on the merits.

Substantial evidence supports the BIA's conclusion that Singh failed to demonstrate a material change in conditions in India. A petitioner seeking to reopen his case based on changed country conditions must demonstrate that circumstances have sufficiently changed from the time of his previous hearing to those at the time of the motion to reopen such that he now has a legitimate claim for relief. Rodriguez v. Garland, 990 F.3d 1205, 1208 (9th Cir. 2021). The newly submitted evidence may not simply recount previous conditions-rather, it must be "qualitatively different" from the evidence available at the former hearing. Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010).

Here country conditions evidence pre-dating Singh's 2004 proceeding indicates that Indian authorities, in their efforts to suppress extremist...