Balkar Singh v. Eric Holder, Jr. ( 2012 )

FILED
NOT FOR PUBLICATION DEC 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALKAR SINGH, No. 11-70645
Petitioner, Agency No. A073-411-243
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 19, 2012 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Balkar Singh, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order denying his motion to reopen based on
ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen, Avagyan v. Holder,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
646 F.3d 672, 674 (9th Cir. 2011), and review de novo claims of due process
violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny the
petition for review.
The BIA did not abuse its discretion in denying Singh’s motion to reopen as
untimely because the motion was filed more than six years after the BIA’s final
order of removal, see 8 C.F.R. § 1003.2(c)(2), and Singh failed to establish the due
diligence required for equitable tolling of the filing deadline, see Avagyan, 646
F.3d at 678-80 (equitable tolling is available to a petitioner who establishes that he
suffered from deception, fraud or error, and exercised due diligence in discovering
such circumstances).
It follows that Singh’s due process claims fail. See Colmenar, 210 F.3d at
971 (due process violation occurs “if the proceeding was so fundamentally unfair
that the alien was prevented from reasonably presenting his case”); Najmabadi v.
Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (BIA need not “write an exegesis on
every contention,” just “consider the issues raised, and announce its decision in
terms sufficient to enable a reviewing court to perceive that it has heard and
thought and not merely reacted” (internal quotations and citation omitted)).
In light of our disposition, we need not reach Singh’s remaining contentions.
PETITION FOR REVIEW DENIED.
2 11-70645