Singh v. Ashcroft ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 3, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-60759
Summary Calendar
JEET SINGH,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A70-007-358
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Jeet Singh, a native and citizen of India, seeks review of an
order of the Board of Immigration Appeals (“BIA”) denying his
motion to reopen his deportation proceeding and rejecting his
request for relief under the Convention Against Torture. For the
following reasons, his petition for review is DENIED.
Singh entered the United States on June 5, 1994, without
inspection, and was apprehended by immigration officials soon
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
thereafter. On June 8, officials with the Immigration and
Naturalization Service (“INS”) served on Singh an Order to Show
Cause (“OSC”). The OSC advised Singh that he was required by law
to provide an address and telephone number where notices could be
sent, that he would have a hearing before an immigration judge, and
that he could be deported if he failed to appear at the hearing.
Singh refused to provide a United States address. Singh’s
deportation hearing was held on July 13, 1994, but he did not
appear. The immigration judge (“IJ”) ordered Singh deported in
absentia.
Four years later, Singh filed a motion to reopen his case and
submitted a corresponding application for asylum. The IJ denied
Singh’s motion and concluded that Singh had received proper notice
of the deportation hearing. Singh appealed this decision to the
BIA, and he also filed a second motion to reopen his deportation
proceedings with the BIA under the Convention Against Torture. The
BIA rejected both of his arguments.
In his current petition, Singh first argues that the BIA erred
in concluding that he received sufficient notice of his deportation
hearing. He claims that he did not speak or understand English and
thus did not understand the requirements set forth in the OSC.
In reviewing the BIA’s denial of a motion to reopen, we apply
“a highly deferential abuse of discretion standard.”1 We review
1
See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000).
2
the BIA’s factual findings to ensure that they are supported by
substantial evidence. The BIA’s conclusion must be “based upon the
evidence presented and [must be] substantially reasonable.”2 We
“may not reverse the BIA’s factual conclusions unless the evidence
was ‘so compelling that no reasonable factfinder could conclude
against it.’”3
We conclude from a review of the record that the BIA did not
abuse its discretion in refusing to reopen Singh’s case. There is
ample evidence in the record indicating that Singh spoke and
understood English when he received the OCR. Not only did Singh
sign a certification indicating that he understood English, but he
also provided immigration officials with detailed personal
information, which they used to prepare a specialized immigration
form.
Singh next argues that his case should be reopened because he
received ineffective assistance by an immigration consultant, who
prepared an asylum application for him shortly after the
deportation order was issued. Singh claims that this ineffective
assistance constitutes an exceptional circumstance sufficient to
justify recission of the deportation order. His argument is
without merit.
2
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 350 (5th Cir.
2002).
3
Lopez De Jesus v. INS, 312 F.3d 155, 158-59 (5th Cir. 2002)
(citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)).
3
A deportation order may be rescinded upon a motion to reopen
if an alien demonstrates that his failure to appear at a
deportation hearing was caused by exceptional circumstances.4
Exceptional circumstances, however, are defined as “exceptional
circumstances ... beyond the control of the alien,” such as
“serious illness of the alien or illness or death of the spouse,
child, or parent of the alien, but not including less compelling
circumstances.”5 Singh neither argues nor demonstrates that the
alleged ineffective assistance of his immigration consultant was a
circumstance beyond his control that caused him to fail to appear
at his deportation hearing. In fact, the alleged ineffective
assistance occurred two months after Singh failed to appear at the
deportation hearing.
Moreover, Singh’s argument is time-barred. As a general rule,
motions to reopen based on exceptional circumstances must be filed
within 180 days of entry of the deportation order.6 Singh does
not argue that his motion to reopen – filed four years after the
original deportation order – was made within this time period, but
instead requests that we equitably toll the running of this period
until the date that he hired his current counsel. Singh never
4
8 U.S.C. § 1252b(f)(2) (repealed 1996); see also id. §
1229a(e)(1) (2003).
5
Id.
6
See Id. § 1252b(c)(3) (repealed 1996); see also id. §
1229a(b)(5)(C)(i) (2003).
4
states when he hired his attorney, however, and there is no
evidence of this date in the record.
Singh’s final argument is that the BIA erroneously concluded
that his motion to reopen based on the Convention Against Torture
(“CAT”) was time-barred. This argument is without merit.
Under the regulations implementing the CAT, aliens who were
ordered deported prior to March 22, 1999, may move to reopen the
order if they file by June 21, 1999.7 Since Singh’s final
deportation order was entered on July 13, 1994, he could have filed
his motion under the CAT at any time up until June 21, 1999. He
did not file his motion seeking protection under the CAT until July
6, 1999, well after the regulatory deadline.
Singh argues that we should equitably toll the regulatory
deadline because he received inadequate notice of his deportation
hearing and ineffective assistance by his immigration consultant.
However, neither ground provides justification for tolling. As
noted above, the record indicates that Singh did receive proper
notice of his hearing. In addition, Singh retained his current
attorney at least as early as November 1998, when he filed his
initial motion to reopen based on alleged lack of notice. Singh
does not explain why his current attorney could not file a motion
under the CAT before the June 21, 1999, deadline. Thus, the BIA’s
conclusion that his CAT application was time-barred was a
7
See 8 C.F.R. § 201.18(b)(2)(i).
5
reasonable interpretation of the regulations.8
For the foregoing reasons, Singh’s petition is DENIED.
8
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001)
(“[W]e will defer to the BIA’s interpretation of immigration
regulations if the interpretation is reasonable.”).
6