Kuldeep Kaul v. Atty Gen USA

Filing

MANDATE ISSUED, filed.

Kuldeep Kaul v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-3075

Document: 003110218203

Page: 1

Date Filed: 07/15/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-3075 ___________ K U L D E E P KAUL, Petitioner v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t ____________________________________ O n Petition for Review of an Order of the Board of Immigration Appeals A g e n c y No. A098 493 289 Im m ig ratio n Judge: Margaret R. Reichenberg ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a y 19, 2010 B e f o re : AMBRO, CHAGARES and ALDISERT, Circuit Judges (O p in io n filed: May 24, 2010) ___________ O P IN IO N ___________ P E R CURIAM K u ld e e p Kaul petitions for review of an order of the Board of Immigration A p p e a ls ("BIA"), which denied his motion to reopen. We will deny the petition for re v ie w .

Dockets.Justia.com

Case: 09-3075

Document: 003110218203

Page: 2

Date Filed: 07/15/2010

I. K a u l is a native of India and a citizen of Kenya. Kaul entered the United States on a visitor's visa and was placed in removal proceedings for staying longer than permitted. He applied for asylum and related relief, claiming that he was, and would be, persecuted in Kenya because of his ethnicity. The Immigration Judge ("IJ"), in an order dated O c to b e r 23, 2006, denied asylum as to Kenya, denied withholding of removal to Kenya a n d India, denied relief under the Convention Against Torture as to both countries, and o rd e re d Kaul removed to Kenya. The BIA affirmed without opinion on September 8, 2008. Kaur filed a motion to reopen, dated December 10, 2008, and received by the BIA o n December 11, 2008. In an affidavit attached to the motion, Kaul stated that "there h a v e been significant changes in Kenya that cause me to fear for the safety of my family an d my self." A.R. 9. Kaul noted that in December 2007 and early January 2008, there h a d been riots leading up to the elections. Kaul referred to attached articles "regarding th e attacks on Kenyan Indians." Id. Kaul stated that the "current climate has allowed In d ia n businesses to be targeted and rioting has occurred outside of Indian homes." Id. Kaul stated that he would not be able to survive economically in Kenya, and that "these a re very dangerous times for an Indian in Kenya and for a Kashmiri-born Indian in India, a country to which I no longer have citizenship." T h e BIA noted that the motion was untimely, but that the time limitations do not

2

Case: 09-3075

Document: 003110218203

Page: 3

Date Filed: 07/15/2010

a p p ly to a motion to reopen based on changed country conditions. The BIA found, h o w e v e r, that the changed country conditions exception was inapplicable. The BIA noted th a t despite the submission of "various articles describing the recent unrest in Kenya w h ich surrounded the national elections in early 2008," Kaul had "failed to demonstrate h o w such evidence sets forth a viable asylum claim." A.R. 3. The BIA also noted that th e IJ had found no pattern or practice of persecution of Kenyans of Indian descent. The B IA found that Kaul "has not presented his evidence of current country conditions within th e context of any specified well-founded fear of persecution claim that would relate to h im ," and noted that fear of generalized ethnic strife would not warrant reopening. The B IA thus denied the motion as untimely. Kaul filed a timely petition for review. II. B e c au s e Kaul did not file a petition for review of the September 8, 2008 decision, w e may only review the Board's June 19, 2009 decision. See Nocon v. I.N.S., 789 F.2d 1 0 2 8 , 1032-33 (3d Cir. 1986) (final deportation orders and orders denying motions to re o p e n are independently reviewable; a timely petition for review must be filed with re sp e c t to the specific order sought to be reviewed). We review a decision denying a m o tio n to reopen for abuse of discretion. Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2 0 0 1 ). A motion to reopen generally must be "filed within 90 days of entry of a final a d m in is tra tiv e order of removal." 8 U.S.C. § 1229a(c)(7)(C)(i). Kaul's motion was filed b e yo n d the 90 days. However, as the BIA noted, there is an exception to the time

3

Case: 09-3075

Document: 003110218203

Page: 4

Date Filed: 07/15/2010

re q u ire m e n ts for motions to reopen based on changed circumstances arising in the co u n try of nationality since the previous hearing. 8 C.F.R. § 1003.2(c)(3)(ii).1 W e find that the BIA did not abuse its discretion in denying the motion to reopen. The IJ had found that Kaul's experiences in Kenya, including being questioned by g o v e rn m e n t officials for eight hours on one occasion, and losing contracts after the g o v e rn m e n t changed, did not constitute persecution. Kaul did not explain why the civil u n re st that occurred around the end of 2007 and beginning of 2008 would increase the lik e lih o o d that he would be singled out for persecution in Kenya.2 "Mere generalized law les sn e ss and violence between diverse populations, of the sort which abounds in n u m e ro u s countries and inflicts misery upon millions of innocent people daily around the w o rld , generally is not sufficient to permit the Attorney General to grant asylum . . . ." A b d ille v. Ashcroft, 242 F.3d 477, 494-95 (3d Cir. 2001) (quoting Singh v. INS, 134 F.3d 9 6 2 , 967 (9th Cir. 1998)). Kaul argues that the BIA should have discerned his claim that Kenya has a
1

In his brief, Kaul states, without explanation, that the BIA's finding that his motion w a s untimely "is not correct." Petitioner's Brief at 8. His motion to reopen states, again w ith o u t explanation, that "[t]here are no time and numerical limitations on the motion." A.R. 8. Although Kaul never expressly references the "changed country conditions" e x c ep tio n to a timely motion to reopen, we will assume, as apparently did the BIA, that he is invoking that exception. An asylum applicant can show that he has an objective well-founded fear of p e rs e c u tio n in the future by either showing that he would be individually singled out for p e rse c u tio n or by demonstrating that there is a pattern or practice of persecution of people s im ila rly situated in his country of citizenship. Sioe Tjen Wong v. Att'y Gen., 539 F.3d 2 2 5 , 232 (3d Cir. 2008). 4
2

Case: 09-3075

Document: 003110218203

Page: 5

Date Filed: 07/15/2010

" p a ttern or practice" of persecution of Asians by reading the attachments to his motion to reo p en . Petitioner's Brief at 13-15. Kaul did not argue in his motion to reopen that there w a s such a pattern or practice. However, because the BIA did comment on the issue, by re f errin g to the IJ's finding that there was no pattern or practice of persecution of K e n ya n s of Indian descent, see A.R. 3, we have authority to address the claim. Lin v. A tt'y Gen., 543 F.3d 114, 123 (3d Cir. 2008) (where BIA raises claim sua sponte, claim is co n side red exhausted for purposes of review in court of appeals). We find that the BIA d id not abuse its discretion in failing to find a pattern or practice of persecution of Asian K e n ya n s based on rioting that appears to have occurred over a two-month period nearly a ye a r before Kaul filed his motion. Although the materials note that many Indian-owned b u sin e ss e s were destroyed during the rioting, we do not see any indication in the materials su b m itte d with the motion to reopen that Asian Kenyans would continue to have a wellf o u n d e d fear of persecution on the basis of their race or ethnicity. The evidence Kaul su b m itted does not establish that any problems experienced by Asian Kenyans are " sys te m ic , pervasive, or organized," as would be required to find a pattern or practice of p erse cu tio n . Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (citation omitted). F o r the foregoing reasons, we will deny the petition for review.

5