Singh v. Holder ( 2012 )

11-952-ag
Singh v. Holder
BIA
A076 726 584
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4th day of April, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 TARSEM SINGH,
14 Petitioner,
15
16 v. 11-952-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Jaspreet Singh, Jackson Heights, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Bernard A.
29 Joseph, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Tarsem Singh, a native and citizen of India, seeks
6 review of a February 24, 2011 order of the BIA denying his
7 motion to reopen. In re Tarsem Singh, No. A076 726 584(BIA
8 Feb. 24, 2011). We assume the parties’ familiarity with the
9 underlying facts and procedural history of the case.
10 The BIA’s denial of Singh’s motion to reopen as
11 untimely was not an abuse of discretion. See Debeatham v.
12 Holder, 602 F.3d 481, 484 (2d Cir. 2010) (per curiam). A
13 motion to reopen must generally be filed no later than 90
14 days after the date on which the final administrative
15 decision was rendered in the proceedings sought to be
16 reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
17 § 1003.2(c)(2). Singh’s 2010 motion was untimely as the
18 final administrative decision was issued in 2007. However,
19 the time limitation does not apply to a motion to reopen if
20 it “is based on changed country conditions arising in the
21 country of nationality or the country to which removal has
22 been ordered, if such evidence is material and was not
23 available and could not have been discovered or presented at
2
1 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).
2 Singh contends that he submitted material evidence of
3 changed country conditions to the BIA in the form of
4 affidavits and country reports. Specifically, he claims
5 that increased human rights abuses by police in India
6 support his claim that he would face persecution based on
7 his involvement in the Akali Dal Mann (“ADM”) political
8 party.
9 In declining to credit the evidence Singh submitted in
10 support of his motion to reopen, the BIA properly relied on
11 the adverse credibility finding made in Singh's underlying
12 removal proceeding, which was not challenged before this
13 Court and has not been challenged in the present proceeding.
14 See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005)
15 (concluding that the BIA acted within its discretion where
16 it “clearly explained that the evidence submitted by
17 petitioner in support of her motion was not ‘material’
18 because it did not rebut the adverse credibility finding
19 that provided the basis for the IJ’s denial of petitioner’s
20 underlying asylum application”). Moreover, on review of the
21 denial of a motion to reopen, this Court is “precluded from
22 passing on the merits” of the underlying adverse credibility
3
1 finding. Kaur, 413 F.3d at 233 (internal quotation marks
2 omitted).
3 Singh’s reliance on Paul v. Gonzales, 444 F.3d 148 (2d
4 Cir. 2006), is misplaced because the factual predicate of
5 Singh’s motion to reopen is not independent of the testimony
6 that was found incredible in the underlying proceeding. See
7 Paul, 444 F.3d at 154 (explaining that “an applicant may
8 prevail on a theory of future persecution despite an IJ’s
9 adverse credibility ruling as to past persecution, so long
10 as the factual predicate of the applicant’s claim of future
11 persecution is independent of the testimony that the IJ
12 found not to be credible” (emphasis in original)). Indeed,
13 the motion to reopen is based on the same claim underlying
14 Singh’s asylum application: that the Indian police had
15 previously targeted him and will target him in the future
16 because of his membership in ADM. In its 2007 decision, the
17 BIA found that Singh had failed to establish both past
18 persecution and a well-founded fear of future persecution
19 because his testimony that he was a member of ADM was not
20 credible.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
4
1 removal that the Court previously granted in this petition
2 is VACATED, and Singh’s pending motion for a stay of removal
3 in this petition is DENIED as moot. Any pending request for
4 oral argument in this petition is DENIED in accordance with
5 Federal Rule of Appellate Procedure 34(a)(2), and Second
6 Circuit Local Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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