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Bishan Singh v. Eric H. Holder Jr. ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 30 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    BISHAN SINGH,                                    No. 08-71229
    Petitioner,                        Agency No. A075-310-023
    v.
    MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted October 15, 2012
    San Francisco, California
    Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.**
    Petitioner Bishan Singh (“Singh”), a native and citizen of India, seeks
    review of two orders by the Board of Immigration Appeals (“BIA”). The first BIA
    order affirmed the Immigration Judge’s (“IJ”) decision, which had found Singh
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Jane A. Restani, Judge for the U.S. Court of
    International Trade, sitting by designation.
    was not credible, denied Singh’s requests for relief from removal, and ordered
    Singh removed. The second BIA order denied Singh’s motion to reopen removal
    proceedings based on ineffective assistance of counsel and changed country
    conditions. We dismiss the petition as to the Convention Against Torture claim
    and deny the remainder of the petition.1
    Singh’s submission of a membership card in the All-Indian Sikh Students
    Federation (“AISSF”), which appeared fraudulent, and the material contradictions
    between Singh’s testimony and his asylum application concerning the purpose and
    general description of a rally and his treatment by the police constitute substantial
    evidence sufficient to supports the IJ’s adverse credibility finding. See Zamanov
    v. Holder, 
    649 F.3d 969
    , 973–74 (9th Cir. 2011); Khadka v. Holder, 
    618 F.3d 996
    ,
    1001 (9th Cir. 2010).
    The BIA did not abuse its discretion in denying Singh’s motion to reopen
    based on ineffective assistance of counsel before the IJ and BIA because Singh
    failed to demonstrate that his attorney’s conduct rendered the proceedings
    fundamentally unfair or resulted in prejudice. Mohammed v. Gonzales, 
    400 F.3d 1
             Singh raises for the first time on appeal a request for relief under the
    Convention Against Torture (“CAT”). Singh did not request this form of relief
    before the IJ and Singh failed to present a substantive argument on this issue
    before the BIA. Thus, Singh has not exhausted his administrative remedies and we
    do not have jurisdiction to consider this claim.
    2
    785, 793–94 (9th Cir. 2005). Assuming Singh’s motion to reopen was timely,
    Singh failed to establish that his attorney’s conduct may have altered the outcome
    of the proceedings because Singh’s credibility would have been compromised
    regardless, given Singh’s presentation of the likely fraudulent membership card.
    The BIA also did not abuse its discretion in denying Singh’s motion to
    reopen based on changed country conditions. Singh’s proffered information
    purporting to establish his membership in the AISSF was previously available and
    thus, cannot support his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
    Singh failed to present new evidence linking his fear of future persecution to a
    protected group and, therefore, has failed to establish prima facie eligibility for
    relief from removal. See Toufighi v. Mukasey, 
    538 F.3d 988
    , 996–97 (9th Cir.
    2008). Moreover, Singh failed to present any evidence that could upset his adverse
    credibility finding or demonstrate a material change in the treatment of Sikhs in
    India.
    PETITION DISMISSED in part and DENIED in part.
    3
    

Document Info

Docket Number: 08-71229

Judges: Schroeder, Bea, Restani

Filed Date: 10/30/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024