Charanjeet Singh v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
CHARANJEET SINGH, No. 05-73633
Petitioner, Agency No. A076-456-997
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
CHARANJEET SINGH, No. 08-73919
Petitioner, Agency No. A076-456-997
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NOONAN, BERZON and IKUTA, Circuit Judges.
Charanjeet Singh petitions for review of the denial of his motion to reopen
by the Board of Immigration Appeals ('BIA'). We have jurisdiction pursuant to 8
U.S.C. y 1252 and review for abuse of discretion. Mercado-Zazueta v. Holder,
580 F.3d 1102, 1104 (9th Cir. 2009). We grant the petition.
Singh filed his motion to reopen on April 8, 2008, asserting that his
previous attorney, Randhir Kang, was ineffective for failing to taµe appropriate,
timely action after Singh married a U.S. citizen. Motions to reopen based on
claims of ineffective assistance of counsel are typically subject to the procedural
requirements of In re Lozada, 19 I & N Dec. 637 (BIA 1988), which include
notifying prior counsel of the allegations. Lo v. Ashcroft, 341 F.3d 934, 937 (9th
Cir. 2003). The BIA denied Singh's motion to reopen because the notice he sent to
Kang was not sufficiently detailed.
In Morales Apolinar v. Muµasey, we held that 'where a petitioner's attorney
has been suspended after failing to respond to prior charges of ineffective
assistance, it would be futile for the petitioner to inform counsel of the accusations
or file a complaint.' 514 F.3d 893, 897 (9th Cir. 2008). Here, the Department of
Homeland Security petitioned for Kang's suspension from practicing before the
BIA on January 23, 2006, and although Kang was required to file an answer to
2
these allegations, he failed to do so. See In re Kang, No. D2005-184, at 1 (BIA
Apr. 11, 2006), available at http://www.justice.gov/eoir/profcond/FinalOrders/
KangRandhirÁFinalOrder.pdf. Accordingly, under Morales Apolinar, Singh was
excused from providing any notice to Kang. The BIA's strict application of
Lozada was an abuse of discretion.
The BIA alternatively held that Singh's motion was time-barred. A motion
to reopen must be filed within 90 days of a final order of removal. 8 U.S.C. y
1229a(c)(7)(C)(i). This deadline may be equitably tolled, however, 'during
periods when a petitioner is prevented from filing because of deception, fraud, or
error, as long as the petitioner acts with due diligence in discovering the deception,
fraud, or error.' Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir. 2007)
(quoting Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003)). If the petitioner
acts with due diligence, 'the limitations period is tolled until the petitioner
'definitively learns' of counsel's defectiveness.' Id. (quoting Singh v. Gonzales,
491 F.3d 1090, 1096 (9th Cir. 2007)).
Because of Kang's repeated assurances, Singh indicates that he did not
definitively learn of Kang's ineffectiveness until speaµing with his present counsel
in February 2008. The BIA concluded, however, that Singh--through the exercise
of due diligence--should have discovered his claim the moment his present
3
counsel was appointed by the court for mediation purposes on August 30, 2007.
The BIA provided no reasoned justification for this conclusion. Singh's present
counsel did not receive the file in this case until late September 2007, and Singh
did not meet his present counsel until October 2007. Present counsel indicates that
he did not discover Singh's potential claim until January 28, 2008, having
previously been engaged in several months of court-ordered mediation with the
government in this matter.
Although we have previously started the limitations period when a petitioner
obtains new counsel, we have done so only in light of the particular facts and
circumstances of a case. See Fajardo v. INS, 300 F.3d 1018, 1022 (9th Cir. 2002)
('Given the facts of this case, the limitation period . . . must be tolled until Fajardo
was aware of the harm resulting from Serra and Levin's misconduct. In the
present circumstances, that would be the time in which Fajardo obtained her
present counsel.' (emphasis added)); see also Iturribarria, 321 F.3d at 899 ('If the
asserted facts were established, the ninety-day limitation period . . . did not begin
running until . . . the day Mr. Iturribarria met with his new counsel to discuss his
file and first became aware of Ms. Colman's alleged fraud.' (emphasis added)).
Here, the BIA appears to apply a per se rule rather than the fact-sensitive analysis
required for equitable tolling. This was an abuse of discretion.
4
We grant Singh's petition and remand to the BIA for further proceedings
consistent with this Memorandum.
PETITION GRANTED; REMANDED.
5
FILED
05-73633/08-73919 Singh v. Holder FEB 22 2010
MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
'We will apply equitable tolling in situations where, despite all due
diligence, [the party invoµing equitable tolling] is unable to obtain vital
information bearing on the existence of the claim.' Socop-Gonzalez v. I.N.S., 272
F.3d 1176, 1193 (9th Cir. 2001) (alteration in original) (internal quotation marµs
omitted). Petitioners are charged with their attorneys' failure to act diligently.
Valeriano v. Gonzales, 474 F.3d 669, 675 (9th Cir. 2007). Singh's new counsel
received Singh's file in late September 2007, but did not review the file
sufficiently to discover a potential ineffective assistance of counsel claim until
January 28, 2008, and did not file a motion to reopen until April 28, 2008. This
delay does not constitute due diligence under any reasonable interpretation of the
word. Given this lengthy delay, the BIA did not err in holding that Singh's motion
to reopen was time-barred for lacµ of diligence regardless when the limitations
period began to run.