Swarn Singh Kang 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 panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SWARN SINGH KANG,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-71009
Agency No. A079-246-986
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012**
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Swarn Singh Kang, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for
FILED
APR 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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an abuse of discretion the BIA’s denial of a motion to reopen. See Toufighi v.
Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). We deny the petition for review.
The BIA did not abuse its discretion in denying Kang’s motion to reopen as
untimely where the motion was filed over four and half years after the BIA’s final
order, see 8 C.F.R. § 1003.2(c)(2), and Kang failed to present sufficient evidence
that he exercised diligence in discovering his claim for ineffective assistance of
counsel, see Singh v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007) (petitioner
was not entitled to equitable tolling where there was no evidence of what he did
between the time he became suspicious of the fraud and when he sought advice
from his present counsel). Kang also failed to present sufficient evidence of
changed circumstances in India to qualify for the regulatory exception to the time
limit for filing motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); Malty v.
Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (“The critical question is . . . whether
circumstances have changed sufficiently that a petitioner who previously did not
have a legitimate claim for asylum now has a well-founded fear of future
persecution.”).
Because Kang failed to establish that an exception to the time limit for filing
a motion to reopen applies, the BIA did not abuse its discretion in not addressing
whether Kang has a claim for relief under the Convention Against Torture.

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09-71009 3
Finally, Kang’s contention that the BIA failed to properly address the
evidence is belied by the record.
PETITION FOR REVIEW DENIED.

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