Singh v. Holder ( 2010 )

09-4218-ag
Singh v. Holder
BIA
Weisel, IJ
A072 473 324
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 18 th day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge.
JON O. NEWMAN,
DENNY CHIN,
Circuit Judges.
_________________________________________
GURMEET SINGH, ALSO KNOWN AS AVATAR
SINGH,
Petitioner,
v. 09-4218-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Gurmeet Singh, pro se, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Leslie McKay,
Assistant Director; Melissa Neiman-
Kelting, Senior Litigation Counsel;
Kristofer R. McDonald, Trial Attorney,
Office of Immigration Litigation,
Civil Division, 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 Gurmeet Singh, a native and citizen of India,
seeks review of the September 11, 2009, order of the BIA,
affirming the March 13, 2008, decision of Immigration Judge
(“IJ”) Robert D. Weisel, which denied his motion to reopen.
In re Gurmeet Singh, No. A072 473 324 (B.I.A. Sept. 11, 2009),
aff’g No. A072 473 324 (Immig. Ct. N.Y. City Mar. 13, 2008).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
When, as here, an alien files a motion that seeks both
rescission of an in absentia exclusion order, as well as
reopening of proceedings based on new evidence, we treat the
motion as comprising distinct motions to rescind and to
reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.
2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1
(2d Cir. 2006). We address separately each of Singh’s motions
below.
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I. Motion to Rescind
We review the denial of a motion to rescind an in
absentia exclusion order for abuse of discretion. See Alrefae
v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Kaur
v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). The
agency’s regulations provide that, although motions to rescind
in absentia orders of exclusion are not subject to time or
numerical limitations, to obtain rescission an alien must
demonstrate that he had reasonable cause for his failure to
appear. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); In re N-B-, 22
I. & N. Dec. 590, 592 (BIA 1999).
As a threshold matter, we find meritless Singh’s argument
that his exclusion order should have been rescinded because
his departure from the United States prior to his exclusion
hearing divested the IJ of jurisdiction over his proceedings.
As the BIA noted, Singh failed to establish that he had
departed from the United States before his scheduled hearing
date. Regardless, even assuming Singh could establish that he
was outside the United States at the time of his hearing, an
alien “cannot compel the termination of deportation
proceedings which have been commenced against him merely by
effecting a departure and reentry.” See Matter of Brown, 18
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I. & N. Dec. 324, 325 (BIA 1982); see also Ahmed v. Gonzales,
432 F.3d 709, 711 (7th Cir. 2005) (noting that upon finding
that an alien is removable and received adequate notice of a
hearing, “an immigration judge [does not have] discretion to
terminate removal proceedings because an alien has left the
country,” but must instead issue an order of removal).
Singh additionally argues that he established “reasonable
cause” for his absence from the proceedings based on the
ineffective assistance of his former counsel. However, as the
BIA properly found, Singh cannot show any prejudice regarding
his failure to appear at his March 1993 hearing arising from
any ineffective assistance of counsel related to the filing of
his first motion to reopen as that ineffectiveness did not
occur until after he failed to appear. See Rabiu v. INS, 41
F.3d 879, 882 (2d Cir. 1994) (holding that an alien must
demonstrate actual prejudice to prevail on an ineffective
assistance claim). Moreover, in light of the numerous reasons
Singh proffered for failing to attend his March 1993 exclusion
hearing, the BIA did not abuse its discretion in finding that
Singh failed to establish that his failure to appear at his
March 1993 exclusion hearing was due to any ineffective
assistance on the part of his prior counsel. Thus, because
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Singh failed to establish reasonable cause for his failure to
appear, see Matter of Haim, 19 I. & N. Dec. 641, 642 (BIA
1988), the BIA did not abuse its discretion in denying his
motion to rescind.
II. Motion to Reopen
The BIA similarly did not abuse its discretion in finding
that Singh’s request to adjust to permanent resident status on
the basis of an approved Immigrant Petition for Alien Worker
did not constitute grounds for reopening his case. See Matter
of Castro-Padron, 21 I. & N. Dec. 379, 380 (BIA 1996). As the
BIA has found, an IJ in exclusion proceedings has jurisdiction
to adjudicate adjustment applications only in limited
circumstances. Because those circumstances do not pertain
here, the BIA found that Singh was not eligible for adjustment
of status in exclusion proceedings and properly denied the
motion to reopen. See id. To the extent Singh argues that
reopening is appropriate to allow him to pursue a request for
cancellation of removal, we decline to address this
unexhausted argument. See Lin Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
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that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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