Singh v. Holder , 381 F. App'x 699 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 03 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JASPAL SINGH; et al., No. 07-70851
Petitioners, Agency Nos. A077-819-214
A077-819-215
v. A077-819-216
A077-819-217
ERIC H. HOLDER Jr., Attorney General, A077-819-218
Respondent.
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Jaspal Singh and his family, natives and citizens of India, petition for review
of the Board Immigration Appeals’ (“BIA”) order denying both their motion to
reopen based on ineffective assistance of counsel and their motion to remand. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
*
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).
denial of a motion to remand, Rodriguez v. INS, 841 F.2d 865, 867 (1987), and the
denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.
2005). We review de novo ineffective assistance of counsel claims. See id. at 791-
92. We deny the petition for review.
Singh contends the BIA erred in denying his motion to reopen because his
former counsel’s failure to include further medical documentation and experts to
substantiate his inability to testify in court based on his mental illness, to file a
change of venue, and to interview additional witness and call them to testify. The
BIA did not abuse its discretion in denying Singh’s motion to reopen because he
failed to establish that his former counsel’s performance was ineffective, see
Mohammed, 400 F.3d at 793, or that it resulted in prejudice, see Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 826 (9th Cir. 2003) (to prevail on an ineffective assistance
of counsel claim, petitioner must demonstrate prejudice).
In addition, the BIA did not abuse its discretion in denying as untimely
Singh’s motion to remand based on evidence to bolster his Convention Against
Torture claim, because the evidence he submitted was not material and was
available at the time of his merits hearing. See Rodriquez, 841 F.2d at 867
(“Motions to reopen [and remand] in deportation proceedings shall not be granted
unless it appears to the Board that evidence sought to be offered is material and
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was not available and could not have been discovered or presented at the former
hearing.”).
Singh’s request for judicial notice is granted.
PETITION FOR REVIEW DENIED.
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