Singh v. Lynch , 634 F. App'x 33 ( 2015 )

14-2605
Singh v. Lynch
BIA
A088 186 012
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 29th day of December, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 KARAMJIT SINGH,
14 Petitioner,
15
16 v. 14-2605
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jaspreet Singh, Jackson Heights,
25 New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General;
29 Jennifer Williams, Senior
1 Litigation Counsel; Lindsay W.
2 Zimliki, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Karamjit Singh, a native and citizen of India,
12 seeks review of a June 27, 2014 decision of the BIA denying
13 Singh’s motion to reopen. In re Karamjit Singh, No. A088 186
14 012 (B.I.A. June 27, 2014). We assume the parties’ familiarity
15 with the underlying facts and procedural history in this case.
16 We have reviewed the BIA’s denial of Singh’s motion to
17 reopen for abuse of discretion, see Ali v. Gonzales, 448 F.3d
18 515, 517 (2d Cir. 2006) (per curiam), and the BIA’s factual
19 findings regarding country conditions under the substantial
20 evidence standard, see Jian Hui Shao v. Mukasey, 546 F.3d 138,
21 169 (2d Cir. 2008). It is undisputed that Singh’s motion to
22 reopen was untimely filed: the agency’s order of removal became
23 final in 2010 and Singh did not file his motion to reopen until
2
1 2014, well beyond the 90-day deadline. See 8 U.S.C.
2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
3 The BIA did not err in declining to equitably toll the
4 period for Singh to file his motion based on his ineffective
5 assistance of counsel claim. In order to warrant equitable
6 tolling, even assuming that prior counsel was ineffective, an
7 alien is required to demonstrate “due diligence” in pursuing
8 his claim during “both the period of time before the ineffective
9 assistance of counsel was or should have been discovered and
10 the period from that point until the motion to reopen is filed.”
11 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see also
12 Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
13 Singh failed to demonstrate due diligence. He did not take
14 any action to pursue reopening in the more than three years that
15 passed between the agency’s final order of removal and his
16 motion to reopen. See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16
17 (2d Cir. 2007)(per curiam).
18 The BIA also reasonably found that Singh failed to
19 demonstrate changed conditions in India to excuse the untimely
20 filing of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii)
21 (exempting from the time limitation motions to reopen “based
3
1 on changed country conditions arising in the country of
2 nationality or the country to which removal has been ordered,
3 if such evidence is material and was not available and would
4 not have been discovered or presented at the previous
5 proceeding”). In light of the agency’s underlying adverse
6 credibility determination, the BIA reasonably declined to
7 credit Singh’s assertion that police recently had targeted and
8 harmed his family members because that assertion was supported
9 solely by evidence that depended upon Singh’s veracity: his own
10 affidavit and an affidavit purportedly from his father. See
11 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007).
12 Moreover, Singh’s general country conditions evidence in
13 support of reopening was substantially similar to the evidence
14 at his hearing—providing no indication that Sikhs are
15 persecuted on account of their party affiliation or support for
16 an independent state. Therefore, the record does not compel
17 the conclusion that conditions in India have materially changed
18 since 2008. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian
19 Hui Shao, 546 F.3d at 171.
4
1 Accordingly, the BIA did not abuse its discretion in
2 denying Singh’s motion to reopen as untimely. See 8 U.S.C.
3 § 1229a(c)(7)(C).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk
5