Singh v. Holder , 455 F. App'x 85 ( 2012 )

10-350-ag
Singh v. Holder
BIA
A072 409 681
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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19th day of January, two thousand twelve.
PRESENT:
GUIDO CALABRESI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
BARIJINDER SINGH,
Petitioner,
v. 10-350-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Martin Avila Robles, Los Angeles,
California.
FOR RESPONDENT: Tony West, Assistant Attorney
General; John S. Hogan, Assistant
Director; Michael C. Heyse, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Barijinder Singh, a native and citizen of
India, seeks review of the December 30, 2009, order of the
BIA denying his motion to reopen his removal proceedings.
In re Barijinder Singh, No. A072 409 681 (B.I.A. Dec. 30,
2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case. We
review the BIA’s denial of a motion to reopen for abuse of
discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006).
I. Time and Number Bars
Singh’s motion to reopen was indisputably untimely and
number-barred as it was his fourth motion to reopen and he
filed it more than thirteen years after he was ordered
deported and two years after the BIA’s last decision in his
case. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
§ 1003.2(c)(2). Contrary to Singh’s argument, the
regulation accounts for cases that pre-date its enactment by
requiring motions to reopen to be filed either within ninety
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days “or on or before September 30, 1996, whichever is
later.” 8 C.F.R. § 1003.2(c)(2). Singh’s motion to reopen
clearly does not meet that test.
II. Changed Country Conditions
There are no time limitations on motions to reopen if
the alien establishes materially “changed country conditions
arising in the country of nationality.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
Singh submitted, with his motion to reopen, U.S. State
Department Reports on Human Rights Practices in India, along
with other documentary evidence, regarding abuses by the
Indian and Punjab police and security forces related to the
repression of Sikh militancy, including torture,
disappearances, and extra-judicial killings during the
period between 1993 and 1995. Singh also submitted
documentary evidence from the period 2004 to 2009 indicating
that Sikh activists and persons suspected of aiding
terrorists remain subject to torture, disappearance, and
extra-judicial killing. The BIA found that while this
documentary evidence “reflect[ed] some political changes in
India,” it did “not establish any change with regard to the
treatment of Sikh militants or persons suspected of aiding
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terrorists.”
Singh’s challenges to the BIA’s country conditions
finding are unpersuasive. First, the BIA’s review of the
documentary evidence, while succinct, was sufficient to
demonstrate that it had “given reasoned consideration to the
petition, and made adequate findings.” Gao v. Mukasey, 508
F.3d 86, 87 (2d Cir. 2007) (internal quotation marks
omitted); see also Wang v. BIA, 437 F.3d 270, 275 (2d Cir.
2006) (rejecting argument that the BIA must “expressly parse
or refute on the record each individual argument or piece of
evidence offered by the petitioner” (internal quotation
marks omitted)). Second, we reject Singh’s objection to the
use of country conditions at the time of his 1995 hearing as
a baseline, because without such a baseline it would be
impossible to determine whether country conditions had in
fact changed. See 8 C.F.R. § 1003.2(c)(3)(ii) (permitting
motions to reopen “based on changed circumstances arising in
the country of nationality” (emphasis added)).
III. Convention Against Torture (“CAT”)
Because Singh’s deportation order became final in 1996,
see 8 C.F.R. § 1003.39, and he did not file the present
motion to reopen until 2009, his motion to reopen for the
purposes of pursuing CAT relief was untimely. See 8 C.F.R.
4
§ 208.18(b)(2)(i) (requiring an alien with an order of
deportation that became final prior to March 22, 1999 to
file a motion to reopen to pursue CAT relief before June 21,
1999). Thus, Singh’s argument that he is entitled to
reopening to pursue CAT relief because such relief was not
available at the time of his initial hearing lacks merit.
IV. Adjustment of Status
To the extent Singh challenges the BIA’s decision not to
reopen his case sua sponte to permit him to adjust his
status, we lack jurisdiction to review that decision, as sua
sponte reopening under 8 C.F.R. § 1003.2(a) is “entirely
discretionary.” Ali, 448 F.3d at 518.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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