Dhirendra Nath Sukul v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DHIRENDRA NATH SUKUL,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
Nos. 15-72408
16-70902
Agency No. A075-731-618
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 10, 2022**
Pasadena, California
Before: TASHIMA, M. SMITH, and WATFORD, Circuit Judges.
Petitioner Dhirendra Nath Sukul, a native and citizen of Fiji, asks this court
to reverse the Board of Immigration Appeals’ (BIA) denial of two motions to
reopen his removal proceedings. The parties are familiar with the facts, and so we
do not recount them here. We review the denial of the motions to reopen for abuse
* 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).
FILED
JAN 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of discretion, INS v. Doherty, 502 U.S. 314, 323 (1992), and deny both petitions
for review.
First Motion to Reopen. Sukul’s first motion to reopen was untimely filed
and did not show a material change of conditions in Fiji. Motions to reopen
removal proceedings must be filed within ninety days of the final administrative
order of removal, unless equitable tolling or an exception applies. 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2), (3); see Singh v. Holder, 658 F.3d
879, 884–85 (9th Cir. 2011). Motions can be filed outside the ninety-day limit
when there are changed country conditions, if the evidence is material and newly
available. 8 U.S.C. § 1229a(c)(7)(C)(ii). Sukul’s final order of removal was
entered on August 12, 2011, so any motion to reopen was due by November 10,
2011, 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Sukul filed this
motion to reopen and a motion to stay his removal on June 29, 2015, nearly four
years after the BIA’s final order of removal, and way beyond the ninety-day
deadline. He did not show that conditions in Fiji have materially changed since his
removal hearing and so his motion is untimely. The 2002 Country Report, which
is in the record of the original proceedings, indicated tensions between indigenous
Fijians and Indo-Fijians, the ethnic minority group of which Sukul is a member.
Sukul relies on a 2013 Country Report to show changed country conditions, but
that report reflects the same tensions addressed in the 2002 report. The BIA

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correctly denied the motion because it was untimely.
Second Motion to Reopen. Sukul’s second motion to reopen was also
untimely and exceeded the number of allowed motions. This motion was filed on
January 28, 2016, again years beyond the ninety-day filing deadline. The BIA
correctly denied the motion because it was both time-barred and number-barred, as
only one such motion to reopen is allowed. 8 U.S.C. § 1229a(c)(7)(A); 8 C.F.R.
§ 1003.2(c)(2). Sukul argues for equitable tolling of the ninety-day filing deadline,
because of exceptional circumstances.
Equitable tolling is available when “despite all due diligence, [the movant] is
unable to obtain vital information bearing on the existence of the claim.” Socop-
Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc), overruled on
other grounds by Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc) (citation
omitted). The United States Citizenship and Immigration Services approved a
Form I-130 visa petition submitted by Sukul’s wife on his behalf, and Sukul asks
the BIA to allow him the opportunity to apply for a section 212(h) waiver and
adjustment of status based on this “new evidence.” The BIA, however, already
considered and denied an application for adjustment of status during his original
removal proceeding based on his wife’s filing of an earlier I-130 visa petition, so
this is not “new evidence.”
Equitable tolling also applies “when a petitioner is prevented from filing

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because of deception, fraud, or error, as long as the petitioner acts with due
diligence in discovering the deception, fraud, or error.” Iturribarria v. INS, 321
F.3d 889, 897 (9th Cir. 2003). Sukul does not argue there was any deception,
fraud, or error, and we see none, and therefore no reason to allow equitable tolling.
8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(3).
Further, we cannot review the BIA’s denial of the motions to reopen under
its sua sponte authority because Sukul does not allege legal or constitutional error.
See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016).
PETITIONS FOR REVIEW DENIED in part and DISMISSED in part.

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