Singh v. Lynch , 648 F. App'x 1 ( 2016 )

13-2620
Singh v. Lynch
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 27th day of April, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
BARIJINDER SINGH,
Petitioner,
v. 13-2620
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Viney Gupta, Orange, CA.
FOR RESPONDENT: Joyce R. Branda, Acting Assistant
Attorney General; Kiley Kane, Senior
Litigation Counsel; Jeffrey R.
Meyer, 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 in part and in part DISMISSED.
Barijinder Singh, a native and citizen of India, seeks
review of the June 12, 2013, decision of the BIA denying his
motion to rescind and reopen. In re Barijinder Singh, No.
A072 409 681 (B.I.A. June 12, 2013). We assume the parties’
familiarity with the underlying facts and procedural
history.
When, as here, an alien seeks both rescission of an in
absentia deportation order, as well as reopening of
deportation proceedings based on new evidence, the motion is
treated as comprising distinct motions to rescind and to
reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.
2006). We review the BIA’s denial of a motion to rescind
and a motion to reopen for abuse of discretion. Maghradze
v. Gonzales, 462 F.3d 150, 152 (2d Cir. 2006). “An order
entered in absentia in deportation proceedings may be
rescinded only upon a motion filed: (1) [w]ithin 180 days
after the date of the order of deportation if the alien
demonstrates that the failure to appear was because of
exceptional circumstances beyond [his] control . . .; or (2)
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[a]t any time if the alien demonstrates that he or she did
not receive notice . . . .” 8 C.F.R.
§ 1003.23(b)(4)(iii)(A); see also 8 U.S.C. § 1229a(b)(5)(C).
A claim of “ineffective assistance of counsel can constitute
an ‘exceptional circumstance’ warranting the reopening of a
deportation order entered in absentia.” Aris v. Mukasey,
517 F.3d 595, 596 (2d Cir. 2008) (citation omitted).
Here, the BIA did not abuse its decision in declining
to revisit Singh’s assertion that he had not received
notice, because it had previously considered and rejected
that claim, and Singh did not petition for review of that
decision. See U.S. v. Quintieri, 306 F.3d 1217, 1225 (2d
Cir. 2002). Regardless, notice was properly sent to Singh’s
counsel of record by certified mail. See Song Jin Wu v.
INS, 436 F.3d 157, 162 (2d Cir. 2006).
Moreover, the BIA reasonably ruled that, even if it
were to consider Singh’s ineffective assistance of counsel
claim, equitable tolling would be inappropriate because
Singh failed to make the required showing that he acted with
diligence in pursuing that claim during the 17-year period
he sought to toll. See Jin Bo Zhao v. INS, 452 F.3d 154,
156-57 (2d Cir. 2006). Singh was clearly aware of his 1995
in absentia deportation order by at least 2001, when he
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filed his first motion to rescind, but failed to raise his
ineffective assistance claim for another twelve years,
during which time he filed multiple additional motions to
reopen. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.
2008) (holding that petitioner failed to exercise due
diligence when, after he should have known of his initial
counsel’s ineffectiveness, he waited fourteen months to
pursue the claim). Accordingly, the BIA did not abuse its
discretion in denying Singh’s motion insofar as he sought
rescission.
An alien seeking to reopen proceedings to present new
evidence of his eligibility for relief may file only one
motion to reopen no later than 90 days after the date of the
final administrative decision, unless an exception applies.
8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
It is undisputed that Singh’s most recent motion to reopen,
his fourth, was number-barred and untimely filed in 2013,
more than 17 years after he was ordered deported in
absentia. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i).
The statute and regulations governing motions to reopen
do not provide an exception to the applicable time and
numerical limitations based on purported eligibility for
adjustment of status, leaving the BIA’s sua sponte reopening
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authority as Singh’s only avenue for reopening. See Mahmood
v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because
Mahmood’s untimely motion to reopen was not excused by any
regulatory exception, his motion to reopen could only be
considered upon exercise of the Agency’s sua sponte
authority.”); Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA
2009). We lack jurisdiction to review the BIA’s decision
not to exercise its sua sponte reopening authority to permit
Singh to apply for adjustment of status based on the visa
petition filed by his wife because sua sponte reopening
under 8 C.F.R. § 1003.2(a) is “entirely discretionary.” Ali
v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED in part and in part DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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