Baljit Singh v. Attorney General United States , 574 F. App'x 120 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1535
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BALJIT SINGH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No.: A088-231-521)
Immigration Judge: Henry S. Dogin
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: July 17, 2014)
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OPINION
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PER CURIAM
Petitioner Baljit Singh petitions for review of the Board of Immigration Appeals’
decision denying his motion to reopen removal proceedings. For the reasons that follow,
we will deny the petition for review.
Singh, a native and citizen of India, entered the United States in 2006 without
being admitted or inspected. Removal proceedings were initiated in 2007 pursuant to 8
U.S.C. § 1182(a)(6)(A)(i). In response, Singh applied for asylum, withholding of
removal, and protection under the Convention Against Torture, claiming that he was
harassed and beaten on two occasions by Congress Party officials in his village in the
Punjab because he refused to join the party. He sustained injuries after his first arrest
which were treated at home by his mother. Following his second detention, Singh went
to the hospital to be treated for his injuries. Singh testified that his brother also had been
threatened by the Congress Party, and that his brother fled to England.
The Immigration Judge found Singh’s testimony incredible, and found that he
should have provided corroborative evidence from his brother. The IJ based his adverse
credibility determination on three points of inconsistency between Singh’s testimony and
the documentary evidence: (1) Singh testified that the name of the hospital where he
sought treatment was the Tanda District hospital, when in fact the hospital is called the
Bhela Maternity and General Hospital in the Tanda District; (2) Singh testified that he
stayed two nights in the hospital when the record showed he stayed only one night; and
(3) Singh testified that he arrived in the United States from Canada via taxi, but his
affidavit stated that he arrived by ship.
On July 2, 2010, the Board of Immigration Appeals dismissed the appeal because
it found no clear error in the IJ’s adverse credibility determination. The Board also
affirmed the IJ’s finding that Singh should have presented corroborating evidence from
his brother in England. Finally, the Board noted that there was no support in the record
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for the conclusion that Singh would likely be tortured by or with the acquiescence of a
government official upon his return to India.
Singh petitioned for review of the Board’s decision. After full briefing, we denied
the petition for review, reasoning as follows:
While not a particularly compelling adverse credibility
finding, we cannot say that the record compels a different
conclusion. For example, in his asylum application, Singh
said he arrived in the United States by ship, but testified that
he crossed the border in a car. When the IJ confronted him
about this inconsistency and elicited further testimony, his
story changed several times. He said he arrived by ship, then
changed his testimony to he arrived by taxi and then boarded
and waited on a ship. While this does not go to the heart of
Singh’s claim and strikes us as relatively minor, this
inconsistency combined with the other minor inconsistencies,
does not compel a conclusion that Singh is credible. Even if
the testimony was credible, the BIA’s determination that
Singh failed to present readily available corroborating
testimony is also supported by substantial evidence. In his
testimony, Singh referenced that his brother was similarly
mistreated for his unwillingness to be politically active, yet he
did not provide any documentation corroborating his story.
When the IJ probed further, Singh indicated he did not have
contact with his brother but his parents, whom Singh was in
contact with, did.
Singh v. Att’y Gen. of U.S., 462 F. App’x 209, 211 (3d Cir. 2012) (citations to record
omitted).
On November 14, 2013, Singh filed a motion to reopen with the Board. Because
the motion was not filed within 90 days of the Board’s prior decision, Singh argued that
he could show a change in country conditions since his merits hearing in 2008. In
support of his motion to reopen, Singh argued that the police continue to be interested in
him and he offered his own declaration and two declarations from his father attesting to
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the police’s continued interest. In one, his father stated that, on July 3, 2012, the police
came to his house to check on his son. In the other, his father stated that police officers
had raided the family home on July 12, 2013 and threatened to kill Singh. Singh also
based his motion on allegedly new information on torture in India. He submitted a 2012
article from Human Rights Watch, a document titled “Torture in India 2011” that was
published by the Asian Centre for Human Rights, the State Department’s 2012 Country
Report on human rights practices in India, and a news article discussing discrimination
against Sikhs. Singh further argued that the original adverse credibility determination
was flawed.
On February 6, 2014, the Board denied Singh’s motion to reopen as untimely
filed; the Board would not apply the exception for changed country conditions. The
Board concluded that Singh had failed to provide any detailed explanation for why the
police would continue to be interested in him more than 6 years after his departure from
India, and that Singh had failed to explain how his country conditions evidence pertained
specifically to his claim. The Board noted ongoing concerns in India that might be
generally relevant but found that there was no change in conditions sufficient to support a
claim that Singh was prima facie eligible for asylum, citing Matter of S-Y-G-, 24 I. & N.
Dec. 247, 253 (BIA 2007). The Board gave limited weight to Singh’s father’s
declarations.
Singh has timely petitioned for review. We have jurisdiction to review a final
order of removal pursuant to 8 U.S.C. § 1252(a)(1), (b)(1). We review the denial of a
motion to reopen for an abuse of discretion. Immigration & Naturalization Serv. v.
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Doherty, 502 U.S. 314, 323 (1992). Under this deferential standard, we will not overturn
the Board’s decision unless it is arbitrary, irrational, or contrary to the law. See Guo v.
Ashcroft, 386 F. 3d 556, 562 (3d Cir. 2004). Moreover, the Supreme Court has warned
that “[m]otions for reopening of immigration proceedings are disfavored,” noting that “as
a general matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” Id. That warning is germane here. We uphold
the Board’s factual determinations underlying the denial of the motion to reopen if they
are “‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Zheng v. Att’y Gen. of U.S., 549 F.3d 260, 266 (3d Cir. 2008)
(quoting Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481
(1992)).
We will deny the petition for review. A party may file only one motion to reopen
and such motion must be filed no later than 90 days after the date of the removal order. 8
C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(C)(i). Singh’s motion to reopen was filed
more than 90 days after the Board’s original decision, was untimely, and thus was
properly denied on this basis. The 90-day time limitation does not apply if the alien
seeks reopening “based on changed circumstances arising in the country of nationality or
in the country to which deportation has been ordered, if such evidence is material and
was not available and could not have been discovered or presented at the previous
hearing.” Id. at § 1003.2(c)(3)(ii). See also 8 U.S.C. § 1229a(c)(7)(C)(ii). Under the
standards we set forth in Zheng, 549 F.3d 260, the Board must explicitly consider any
country conditions evidence that materially bears on an applicant’s claim, see id. at 268.
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We conclude that the Board acted within its discretion in denying Singh’s motion
to reopen as untimely filed because he failed to show changed country conditions in India
sufficient to exempt him from the 90-day deadline. As a threshold matter, we are
confident that the Board fully considered Singh’s new evidence. In his motion, Singh
supported his claim of changed conditions with his general declaration, his father’s
declarations, and more recent general country conditions evidence from India. Singh
argues in his Informal Brief that the Board failed to give adequate weight to his father’s
declarations and failed to consider all of his country conditions evidence. We are not
persuaded. Given that the agency had previously rejected as not credible Singh’s claim
that the police targeted him for persecution, the Board properly declined to place much
weight on the new assertions by his father that Singh’s life was “still not safe” because
the police had “raided” the house and threatened Singh. When the initial asylum
application and motion to reopen have the same underlying basis, the Board need not
overlook a prior adverse credibility determination in weighing new evidence offered by a
member of the alien’s family. Cf. Gen Lin v. Att’y Gen. of U.S., 700 F.3d 683, 688 (3d
Cir. 2012) (discussing when prior adverse credibility determinations are relevant). The
Board determined that the declaration should not be given significant weight and we are
not compelled to reach a contrary conclusion, 8 U.S.C. § 1252(b)(4)(B).
Singh further failed to show how his documentary country conditions evidence
rehabilitated his credibility, but, even assuming that human rights violations are routinely
committed by the police in India, those violations do not mean that the police would now
have any particular interest in persecuting Singh. In any event, contrary to his assertions,
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the Board reasonably concluded that the documentary evidence does not show a material
change in conditions in India. Singh’s documentary country conditions evidence showed
a continuation of certain problems under Congress Party rule. For example, the 2011
Human Rights Watch article on torture in India states that human rights groups have long
documented the widespread use of torture by the police, and that torture of those in
custody in India is routine. A.R. 22-23 (emphasis added). The 2007 Human Rights
Report, which Singh submitted in support of his original asylum application, also stated
that the police routinely use torture. A.R. 362. See Matter of S-Y-G-, 24 I. & N. Dec. at
253 (in determining whether evidence accompanying motion to reopen demonstrates
material change in country conditions that would justify reopening, Board compares
evidence of country conditions submitted with motion to that which existed at time of
merits hearing). Accordingly, the record evidence shows that conditions are neither
better nor worse.
In sum, the denial of Singh’s motion to reopen as untimely filed was not arbitrary,
irrational, or contrary to law, and thus the Board properly exercised its discretion in
denying the motion to reopen. We note that the Board may deny a motion to reopen for
failure to establish a prima facie case for the relief sought, in this case asylum.
Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105 (1988); Matter of
Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992). We further conclude that the Board did
not abuse its discretion in determining that Singh did not show in his motion to reopen
that he is prima facie eligible for asylum.
For the foregoing reasons, we will deny the petition for review.
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