Narinder Singh; Kulwant Kaur; Sandeep Singh; Navneet Singh v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Kevin Thomas Duffy, United States District Judge for**
the Southern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NARINDER SINGH; KULWANT
KAUR; SANDEEP SINGH; NAVNEET
SINGH,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-72475
Agency Nos. A070-669-362
A070-669-363
A070-669-364
A070-669-365
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 2, 2010
San Francisco, California
Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**
FILED
DEC 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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This memorandum refers to Petitioners collectively. Petitioners are1
husband and wife, along with their two children, and their motion to reopen claims
for relief and protection all derive from Narinder Singh.
Petitioners contend that the pre-Illegal Immigration Reform and Immigrant2
Responsibility Act of 1996 (“IIRIRA”) regulations concerning motions to reopen
should apply to their case because Petitioners’ order to show cause, initiating
removal proceedings, was issued prior to the April 1, 1997 effective date of
IIRIRA. With respect to this court’s jurisdiction, Petitioners concede that pursuant
to the REAL ID Act of 2005 (the “REAL ID Act”), this court’s jurisdiction is now
based on 8 U.S.C. § 1252 rather than pre-IIRIRA 8 U.S.C. § 1105a(a); see also
Sotelo v. Gonzales, 430 F.3d 968, 970 (9th Cir. 2005). Regardless, as Petitioners
also concede, this court’s standard of review for motions to reopen remains the
same.
2
Petitioners Narinder Singh, Kulwant Kaur, Sandeep Singh, and Navneet
Singh (collectively, “Petitioners”), citizens of India, petition for review of the final1
order of the Board of Immigrations Appeals (the “BIA”) denying their motion to
reopen based on allegedly new, material evidence undiscoverable at the time of his
deportation hearing. Because the BIA did not abuse its discretion in denying
Petitioners’ motion to reopen, the petition is DENIED.
Standard of Review
This court has jurisdiction over Petitioners’ petition for review pursuant to 8
U.S.C. § 1252. We review BIA rulings on motions to reopen for abuse of2
discretion and will reverse only if the BIA acted arbitrarily, irrationally, or contrary
to law. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We review
factual findings for substantial evidence and questions of law de novo. Id. at
791–92.

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Analysis
A. Both The Pre-IRRIRA Standard And 8 C.F.R. § 1003.2 Require
Evidence That Is Material And Not Available At The Former Hearing
As Petitioners conceded at oral argument, any distinction between the pre-
IRRIRA standard and 8 C.F.R. § 1003.2 is of no consequence in this case, as both
require that the evidence sought to be offered for a motion to reopen is material and
was not available at the hearing before the Immigration Judge (IJ).
In making such a determination, “the BIA is obligated to consider and
address in its entirety the evidence submitted by a petitioner.” Mohammed, 400
F.3d at 793 (citation omitted). However, it is the alien who bears the burden of
overcoming a presumption that the BIA did consider all of the record evidence in
reaching a finding. See Fernandez v. Gonzales, 439 F.3d 592, 603–04 (9th Cir.
2006).
B. Substantial Evidence Supports The BIA’s Conclusion That Evidence In
Support of Petitioner’s Motion to Reopen Was Either Not Unavailable or Not
Material
Substantial evidence supports the BIA’s conclusion that the evidence in
support of Petitioners’ motion to reopen was either available or not material. The
majority of Petitioners’ proffered “new” evidence is comprised of various affidavits

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and declarations, all of which provide information that was either available at the
time of the initial hearing or is not material.
First, Exhibit C is an undated affidavit from Kabal Singh. An affidavit
apparently from the same individual, although his name was spelled slightly
differently, was in the record before the IJ in Petitioners’ original deportation
proceeding. Next, Exhibit D is an affidavit provided by Narinder Singh’s mother
offered to rebut the BIA’s conclusion that she had lived in India for eleven years, as
of 2003, without incident, which was also available at the time of Petitioners’
hearing before the IJ since Narinder Singh was in contact with his mother
throughout that time. Third, the information in Kulwant Kaur’s declaration, Exhibit
E, was clearly available during the deportation hearing because, as Narinder Singh’s
wife and a co-petitioner, she was present during the hearing and could have testified.
Exhibit F, an affidavit of Baljinder Singh, dated June 17, 2005, repeated information
in Narinder Singh’s mother’s affidavit that was available at the hearing. Exhibit G,
an affidavit from Narinder Singh himself, dated December 1, 2005, also contains
information that was available at the time of his deportation hearing.
Further, the information in Petitioners’ other “new” evidence, consisting of
documents written by various non-governmental organizations, dated from 2003 to
2005, provide general background information of the then-current country
conditions in India. This evidence is not material, as the documents detail the same

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conditions that Petitioners describe experiencing in India before their departure in
1992. Accordingly, the BIA properly denied Petitioners’ motion to reopen, as all of
Petitioners’ proffered “new” evidence was either available at the time of the former
hearing or immaterial. See Matter of Coelho, 20 I & N. Dec. 464, 472 (1992)
(“[T]he Board must deny a motion to reopen in the absence of previously
unavailable, material evidence.”).
PETITION DENIED.

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