Singh v. Attorney General , 276 F. App'x 171 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
4-25-2008
Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2604
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2604
KULWINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A72-797-034)
Immigration Judge: Honorable Eugene Pugliese
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2008
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed April 25, 2008)
___________
OPINION
___________
PER CURIAM
Kulwinder Singh, an Indian native and citizen, petitions for review of a final order
of the Board of Immigration Appeals (“BIA”) denying his motion to reopen removal
proceedings. We will deny Singh’s petition for review.
In 1994, Singh filed his initial request for asylum. Singh argued that he feared
returning to India because he would be persecuted for his practice of Sikhism and his
political activism. The Immigration Judge (“IJ”) found his testimony to be incredible and
denied his application for asylum and withholding of removal. The BIA dismissed the
ensuing appeal on August 22, 2001. Singh filed a motion to reconsider on April 22, 2002
which the BIA denied as untimely. One year later, Singh sought to reopen his case under
the Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D. Cal. 2002) settlement. The
BIA denied his motion. Singh filed the second motion to reopen in January 2007, arguing
that, due to changed country conditions since the IJ’s decision, he would be persecuted if
he returned to India. Singh also argued for reopening based on his former counsel’s
ineffectiveness, a pending labor certificate and equal protection and due process claims.
The BIA denied his motion and Singh filed a timely petition for review.
We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252.
Denials of motions to reopen removal proceedings fall within the discretion of the BIA.
See 8 C.F.R. § 1003.2(a). Thus, we review the BIA’s denial of Singh’s motion to reopen
for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under the
abuse of discretion standard of review, we will not disturb the BIA’s decision unless it
was “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d
Cir. 2004).
Ordinarily, an alien may file only one motion to reopen removal proceedings,
which must be filed no later than ninety days after the decision was issued in the
proceeding the alien seeks to reopen. 8 U.S.C. § 1229a(c)(7). The January 2007 motion
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was Singh’s second motion to reopen and it was filed past the ninety-day deadline.
“However, the ‘time and numerical limitations . . . shall not apply’ to motions to reopen
that ‘apply or reapply for asylum or withholding of deportation based on changed
circumstances arising in the country of nationality . . . if such evidence is material and
was not available and could not have been discovered or presented at the previous
hearing.’” Shardar v. Attorney Gen., 503 F.3d 308, 313 (3d Cir. 2007) (quoting 8 C.F.R.
§ 1003.2(c)(3)).
The BIA did not abuse its discretion in finding that Singh failed to show changed
circumstances in India which would warrant reopening his removal proceedings. A
motion to reopen must establish prima facie eligibility for asylum. Guo, 386 F.3d at 563.
Singh submitted only an affidavit stating that the police came to his house in India and
threatened to arrest him for his past political activities. The affidavit re-asserted claims
which were contained in Singh’s second amended asylum application and which the IJ
found to be incredible during Singh’s original removal proceedings. Thus Singh failed to
produce “objective evidence showing a ‘reasonable likelihood’ that he can establish [that
he is entitled to relief].” Id. quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.
2002).
Unlike changed country circumstances, ineffective assistance of counsel is not a
regulatory basis to seek an exception to the time and number limits for a motion to
reopen. See 8 C.F.R. § 1003.2(c). Singh, however, could circumvent the ninety-day time
limitation on motions to re-open through equitable tolling. See Mahmood v. Gonzales,
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427 F.3d 248, 251 (3d Cir. 2005). We have not addressed in a precedential decision
whether numerical limits on motions to reopen may be equitably tolled. Luntungan v.
Attorney Gen., 449 F.3d 551, 557 (3d Cir. 2006). Even assuming, arguendo, that the one
motion limit is subject to tolling, Singh’s ineffectiveness assistance of counsel claim
cannot succeed because of his failure to comply with the requirements of Matter of
Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1998).
Under Lozada, an alien must (1) provide an affidavit attesting to the relevant facts;
(2) inform former counsel of the allegations, provide counsel with an opportunity to
respond, and submit counsel’s response to the BIA; and (3) state whether a complaint has
been filed with the appropriate disciplinary authorities, and if not, why not. See Fadiga v.
Attorney Gen., 488 F.3d 142, 156. In Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001),
we held that it was not an abuse of the BIA’s discretion to reject an ineffective assistance
of counsel claim for failure to comply with Lozada’s three-prong test. Singh correctly
points out that we have warned against the inherent dangers of a strict formulaic
interpretation of Lozada. Lu, 259 F.3d at 133 (“we are concerned that courts could apply
Lozada’s third prong so strictly that it would effectively require all petitioners claiming
ineffective assistance to file a bar complaint.”). Singh, however, has failed to satisfy or
offer a reasonable explanation for his failure to satisfy any of the three prongs of the test.
Singh submitted an affidavit claiming ineffective assistance of counsel “for failure to
prepare for asylum with corroborating documents, failure to file a timely application for
motion to reopen.” Singh’s ineffective assistance of counsel claims change at every stage
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of the proceedings: he raised different ineffectiveness claims in his affidavit, before the
BIA and on appeal in this Court. Moreover, Singh fails to specify which of his five
former attorneys provided ineffective assistance or whether the alleged ineffective
attorney was informed of Singh’s claim. Thus, the BIA did not abuse its discretion in
denying the motion because of Singh’s failure to comply with the procedural
requirements of Lozada.
Singh also argues that the BIA erred in refusing to sua sponte reopen his removal
proceedings. See 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider
on its own motion any case in which it has rendered a decision”). We lack jurisdiction to
review the BIA’s decision declining to exercise its discretion to reopen or reconsider
Singh’s case. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
Finally, Singh argues throughout his brief that the delay in the processing of his
immigration benefits violates his Fifth Amendment right to due process. As we have
stated, “the various discretionary privileges and benefits conferred on aliens by our
federal immigration laws do not vest in aliens a constitutional right to have their
immigration matters adjudicated in the most expeditious manner possible.” Mudric v.
Attorney Gen., 469 F.3d 94, 99 (3d Cir. 2006).
We have considered the remaining arguments Singh makes in his petition and find
them to be meritless. Accordingly, we will deny the petition for review.
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