Baljinder Kaur Dhillon v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4497
___________
BALJINDER KAUR DHILLON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A075-260-596)
Immigration Judge: Honorable Annie S. Garcy
________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 6, 2009
Before: MCKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: July 7, 2009)
___________
OPINION
___________
PER CURIAM
Petitioner Baljinder Kaur Dhillon, a native and citizen of India, entered the United
States without inspection on September 30, 1996. She is removable under former

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Deportation proceedings were commenced in Dhillon’s case prior to April 1, 1997,1
the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”). Dhillon was charged under former INA § 241 through an Order to Show
Cause.
2
Immigration & Nationality Act (“INA”) § 241(a)(1)(B) for having entered without
inspection. Dhillon applied for asylum and statutory withholding of removal, and her1
merits hearing was continued on several occasions. Finally, on December 20, 1999, the
hearing took place. Dhillon claimed that she was detained by government authorities
because of her brother’s Sikh activism, and, while in detention on one occasion, brutally
raped. The IJ admitted documentary evidence, including a United States Department of
State report on country conditions in India, and Dhillon’s general documentary evidence
on the treatment of Sikhs in the Punjab region. At the merits hearing in 1999, Dhillon’s
counsel stated that she was seeking asylum, withholding of deportation under the INA,
and protection under the Convention Against Torture. A.R. 124-25. These applications
were denied. The IJ did not find Dhillon’s testimony credible and faulted her for failing
to corroborate her testimony with respect to her brother’s political activities. Dhillon’s
application for voluntary departure was granted, and, in the alternative, she was ordered
removed to India. The Board of Immigration Appeals dismissed her appeal on March 29,
2002, and gave her thirty days to voluntarily depart. Dhillon did not petition for review of
this decision.
On July 1, 2008, six years later, Dhillon filed a motion to reopen with the Board

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“for the following reasons: changed circumstances which form the basis of the attached I-
589 and her ability to adjust based on her approved and current I-130.” A.R. 11. Dhillon
married a legal permanent resident in November of 1999. The couple have two United
States citizen children. Dhillon stated in her motion to reopen that her husband, Manpreet
Singh, filed a relative petition on her behalf prior to the sunset date of INA § 245(i), April
30, 2001. See 8 U.S.C. § 1255. In addition, her husband previously was granted asylum
as a persecuted former member of the All India Sikh Students Federation. Dhillon
contended that she is thus now a member of a particular social group entitled to
protection, that is, a visible family member of an asylee. In support of her assertion of a
well-founded fear of persecution, Dhillon submitted some country conditions evidence
with her motion to reopen.
On October 23, 2008, the Board of Immigration Appeals denied the motion to
reopen as untimely because it was not filed within the required 90 days, see 8 C.F.R. §
1003.2(c)(2). The Board considered whether the changed country conditions exception to
the timeliness requirement applied in Dhillon’s case, id. at 1003.2(c)(3)(ii), and
concluded that it did not because she failed to show materially changed conditions in
India relevant to either her previous or new claims regarding asylum, 8 U.S.C. § 1158(a),
and statutory withholding of removal, 8 U.S.C. § 1231(b)(3). In addition, the Board
concluded that Dhillon had failed to make a prima facie showing that she would more
likely than not be tortured by or with the acquiescence or willful blindness of Indian

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authorities so as to warrant reopening for consideration of a new claim to protection
under the CAT.
Turning to her adjustment of status argument, but including also Dhillon’s other
requests for relief as they might present an equitable exception to the timeliness rule, the
Board declined to exercise its sua sponte authority to reopen proceedings, 8 C.F.R. §
1003.2(a). In pertinent part, the Board concluded that Dhillon had not been diligent in
pursuing legal status insofar as she waited until 2008 to seek reopening on the basis of a
1999 marriage and 2001 visa petition. In addition, the Department of Homeland Security
had not joined in the motion to reopen. The Board faulted Dhillon for, among other
things, failing to voluntarily depart when she was required to, and failing to exercise
diligence in pursuing lawful status, waiting until 2008 to pursue a motion to reopen based
on a 1999 marriage.
Dhillon has timely petitioned for review. We previously denied her motion for a
stay of removal. Our review is limited to the Board’s October 23, 2008 decision denying
the motion to reopen, 8 U.S.C. § 1252(a)(1). See also Cruz v. Att’y Gen. of U.S., 452
F.3d 240, 246 (3d Cir. 2006) (denial of motion to reopen is itself a final order of
removal). We lack jurisdiction to review the Board’s March 29, 2002 decision dismissing
her appeal of the IJ’s denial of her application for asylum, statutory withholding of
removal and CAT protection, because she did not timely file a petition for review of this
decision, see IIRIRA § 309(c)(4)(C) (transitional rules provide for thirty day deadline to

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file petition for review).
We review the Board’s denial of a motion to reopen for abuse of discretion only.
Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992). Under this
standard, we will reverse only if the Board’s decision is arbitrary, irrational, or contrary to
law. Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The Board’s jurisdiction
arose under 8 C.F.R. § 1003.2(a), which grants it jurisdiction to adjudicate motions
regarding matters which it has previously considered. The decision whether to grant a
timely motion to reopen is committed to the Board’s discretion. Id. Such motions
generally shall be filed within 90 days of the order sought to be reopened. Id. at §
1003.2(c)(2)-(3). Dhillon’s motion to reopen was late by many years. This undisputed
fact brings to an end our consideration of the changed circumstances and adjustment of
status issues raised in her motion unless she can establish that an exception to the
timeliness rule applies.
One such exception pertinent to Dhillon’s case provides that an alien may reapply
for asylum or statutory withholding of removal based on changed circumstances in the
alien’s home country. Pursuant to 8 C.F.R. § 1003.2(c)(3)(ii), the time and number
limitations on motions to reopen do not apply where the applicant seeks to apply for
asylum “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.”

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Those items include: Canadian Country of Origin Information/RIR, “The situation of2
members, supporters and activists of Akali Dal (Mann),” December 2005, which concerns
the Sikh political leader and his party, A.R. 401-06; “Human Rights Watch Report-India,
2008, which discusses the lack of progress in bringing to justice those who were
responsible for the deaths of Sikhs in the Punjab in the 1980s, A.R. 382; and “Custodial
Deaths on the Rise in Punjab,” The Tribune, December 2004, which does not address
Sikhs at all, A.R. 412-13.
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We have carefully reviewed the evidence of record and we agree with the Board
that Dhillon submitted no persuasive evidence of changed country conditions in India
relative to Sikhs. The Board’s determination that the changed country conditions
exception did not apply in Dhillon’s case was not an abuse of discretion. Dhillon’s
documentary evidence of country conditions showed some continued arrests and
detentions of Sikh political officials who called for a separate Sikh state, but it did not
show that conditions for Sikhs in the Punjab had deteriorated since her hearing, nor did it
show any targeting or persecution of non-political individuals like Dhillon whose fear of
persecution is based on marriage to an asylee. In her brief, Dhillon contends that the
Board did not specifically discuss her evidence, but we are satisfied that the Board fully
considered her evidence and arguments. None of the items referred to, see Petitioner’s
Informal Brief, at 3, required extensive discussion because none of them established
changed conditions in India relevant to her claims.2
We note that, in addition to the information she did present, Dhillon’s motion
stated that certain information was attached, which, in fact, was not attached, and,
therefore, cannot be considered. The Board’s regulations require motions to reopen to be

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supported by “affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). The
evidence must be provided with the motion and not merely alluded to by the movant.
And contrary to Dhillon’s assertion in her brief on appeal, a CAT claim was considered
by the IJ along with her original asylum application, and decided against her under the
appropriate standard. Although there was no mechanism for her to seek protection under
the CAT at the commencement of deportation proceedings, the CAT regulations became
effective on March 22, 1999 and thus prior to her merits hearing, see Regulations
Concerning the Convention Against Torture, 64 Fed. Reg. 8478-01 (Feb. 19, 1999). Her
counsel affirmatively sought protection under the CAT at the hearing in December of
1999, and the IJ specifically considered and denied that request. As such, Dhillon’s
reliance on Filja v. Gonzales, 447 F.3d 241, 256-57 (3d Cir. 2006) – in which we allowed
an alien to file a motion to reopen to seek CAT relief where the regulations became
effective after the decision of an immigration judge and while an appeal to the Board was
pending – is misplaced.
In addition to the time bar, the Board is permitted to deny a motion to reopen when
the petitioner has “failed to establish a prima facie case for the relief sought.” Sevoian,
290 F.3d at 169. In order to establish a prima facie case for protection under the CAT
regulations, Dhillon would have to establish that it was more likely than not that she
would be tortured by or with the acquiescence of governmental authorities. 8 C.F.R. §§
1208.16(c) & 1208.18. Dhillon’s claim was based on an allegation that she and her

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husband would be interrogated and detained upon returning to India, but there is no
support for this proposition in her documentary evidence. Although her documentary
evidence included some allegations of torture, none of it supported the assertion that she
likely would be jailed, or that the Indian police tortured individuals in her position.
Sevoian, 290 F.3d at 176 (“anecdotes . . . supply no basis for concluding that” alien
would be subject to torture “employed on enemies of the regime”).
Finally, with respect to Dhillon’s adjustment of status claim, the regulations do not
provide an exception for the time limits on filing motions to reopen on account of the
ability to adjust status. One of the requirements set forth in Matter of Velarde, 23 I. & N.
Dec. 253 (BIA 2002), is a timely filed motion to reopen. A motion to reopen based on a
relative petition may be granted where these conditions are met:
[A] properly filed motion to reopen may be granted, in the exercise of
discretion, to provide an alien an opportunity to pursue an application for
adjustment where the following factors are present: (1) the motion is timely
filed; (2) the motion is not numerically barred by the regulations; (3) the
motion is not barred by Matter of Shaar . . . or on any other procedural
grounds; (4) the motion presents clear and convincing evidence indicating a
strong likelihood that the respondent’s marriage is bona fide; and (5) the
Service either does not oppose the motion or bases its opposition solely on
Matter of Arthur.
Id. at 256. The Board, as it noted, possesses the power to reopen proceedings sua sponte,
8 C.F.R. § 1003.2(a), but the Board’s decision not to exercise its sua sponte authority to
reopen proceedings is unreviewable. See Cruz v. U.S. Attorney Gen., 452 F.3d 240, 249

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Even if it was reviewable, and we do not conclude that it was, the Board’s conclusion3
that Dhillon was not diligent in pursuing lawful status finds ample support in the record.
9
(3d Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).3
We will deny the petition for review.

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