Singh v. Holder , 488 F. App'x 492 ( 2012 )

11-3057-ag
Singh v. Holder
BIA
Nelson, IJ
A073 172 406
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 New
4 York, on the 18th day of July, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 HARMINDER SINGH,
14 Petitioner,
15
16 v. 11-3057-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Ethan P. Mandziara, Rita Isabel B.
24 Flores, Chicago Immigration Advocates,
25 Chicago, Illinois.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney General;
28 Terri J. Scadron, Assistant Director;
29 Wendy Benner-León, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED, that the petition for review
5 is DENIED.
6 Petitioner Harminder Singh, a native and citizen of
7 India, seeks review of a June 27, 2011, decision of the BIA
8 affirming the April 27, 2010, decision of Immigration Judge
9 (“IJ”) Barbara A. Nelson denying his motion to reopen his
10 immigration proceedings. In re Harminder Singh, No. A073 172
11 406 (B.I.A. June 27, 2011), aff’g No. A073 172 406 (Immig. Ct.
12 N.Y.C. Apr. 27, 2010). We assume the parties’ familiarity
13 with the underlying facts and procedural history of the case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions. See Jigme Wangchuck v.
16 DHS, 448 F.3d 524, 528 (2d Cir. 2006). We review for abuse of
17 discretion the denial of a motion to reopen proceedings in
18 order to rescind an in absentia removal order. See Alrefae v.
19 Chertoff, 471 F.3d 353, 357 (2d Cir. 2006). “An abuse of
20 discretion may be found . . . where the [BIA’s] decision
21 provides no rational explanation, inexplicably departs from
22 established policies, is devoid of any reasoning, or contains
23 only summary or conclusory statements; that is to say, where
2
1 the Board has acted in an arbitrary or capricious manner.” Ke
2 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
3 2001) (internal citations omitted). “We review the agency’s
4 factual findings under the substantial evidence standard,
5 treating them as ‘conclusive unless any reasonable adjudicator
6 would be compelled to conclude to the contrary.’” Mei Fun Wong
7 v. Holder, 633 F.3d 64, 68 (2d Cir. 2011) (quoting 8 U.S.C. §
8 1252(b)(4)(B)).
9 Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i), an alien
10 seeking to have his in absentia removal order rescinded must
11 file a motion to reopen within 180 days of the removal order,
12 and demonstrate that his failure to appear was due to
13 “exceptional circumstances.” However, a motion to rescind may
14 be filed at any time if the motion is based on a lack of
15 notice. 8 U.S.C. § 1229a(b)(5)(C)(ii).
16 Indisputably, Singh’s motion to reopen was untimely under
17 the 180-day period because he filed it more than eleven years
18 after he was ordered removed in absentia. See 8 U.S.C.
19 § 1229a(b)(5)(C)(i), (c)(7)(C). Here, the agency denied
20 Singh’s motion to reopen because it determined that he had
21 received notice of the October 1998 hearing that he failed to
22 attend, resulting in the IJ ordering him removed in absentia.
3
1 Singh argues that he never received notice of his October 1998
2 hearing and, thus, the relevant time limitations do not apply
3 to his motion to reopen. However, substantial evidence in
4 the record supports the agency’s conclusion. An August 1997
5 notice informing Singh of his October 1998 hearing notes that
6 “oral notice of the contents” of the August 1997 notice was
7 given to Singh in his “native language” or in one he
8 understood. The October 1998 in absentia removal order
9 reflects that, at “an earlier hearing,” Singh had “admitted
10 the allegations of fact in the Order to Show Cause and [had]
11 conceded deportability.” The order to show cause supports the
12 conclusion that Singh appeared at the August 1997 hearing,
13 admitted the allegations contained therein and conceded
14 removability, as the order to show cause contains handwritten
15 notations reflecting as much.
16 Singh argues that the record evidence is insufficient to
17 support the agency’s conclusion, particularly in light of his
18 affidavit claiming that he did not attend any hearings in his
19 proceedings. The agency, however, reasonably elected to
20 credit its own records, made at the time of the proceedings in
21 question, over Singh’s self-interested affidavit sworn over
22 eleven years afterward. Further, Singh points to nothing in
4
1 the record aside from his affidavit suggesting that he was not
2 present at the August 1997 hearing or that he did not at that
3 time receive notice of the October 1998 hearing. Accordingly,
4 nothing in the record compels the conclusion that Singh did
5 not receive notice of his October 1998 hearing. See 8 U.S.C.
6 § 1252(b)(4)(B).
7 Time limitations on motions to reopen may be equitably
8 tolled to accommodate claims of ineffective assistance of
9 counsel, provided that, inter alia, the movant has exercised
10 “due diligence.” See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.
11 2006). Singh argues that the agency erred in declining to
12 toll the applicable time limitation on the basis of
13 ineffective assistance of counsel.
14 However, Singh suggests in his affidavit that he did
15 nothing to pursue his application for relief from the summer
16 of 1998 until January 2010 – a period of more than eleven
17 years – and then did so only after agents from the Bureau of
18 Immigration and Customs Enforcement (“ICE”) came to his home,
19 took his passport, and instructed him to appear for an
20 interview with immigration authorities. “[A]n alien is
21 required to exercise due diligence during the entire period he
22 seeks to toll.” Rashid v. Mukasey, 533 F.3d 127, 133 (2d Cir.
5
1 2008). In the exercise of reasonable diligence, Singh should
2 have taken some affirmative action directed toward his
3 immigration proceedings during the more than eleven-year
4 period he seeks to toll. See id. (holding that due diligence
5 required petitioner to “follow up with his attorney, and . . .
6 if he received no response, to obtain new counsel, seek relief
7 from the agency on his own, or take other affirmative
8 action”).
9 Finally, Singh argues that the agency violated his due
10 process rights by failing to substantiate its factual
11 conclusion with the recording of his August 1997 immigration
12 hearing or by conducting an evidentiary hearing on the issue.
13 He points to no authority, however, requiring the IJ to
14 conduct any such hearing or to review the recording of the
15 relevant hearing.
16 For the foregoing reasons, the petition for review is
17 DENIED. As we have completed our review, any stay of removal
18 that the Court previously granted in this petition is VACATED,
19 and any pending motion for a stay of removal in this petition
20 is DISMISSED as moot. Any pending request for oral argument in
21 this petition is DENIED in accordance with Federal Rule of
22 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6
1 34.1(b).
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe, Clerk
7