Swarn Kang v. Eric Holder, Jr.

MEMORANDUM

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 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 re open. See 8 C.F.R. § 1003.2 (c)(3)(ii);…