Singh v. Holder

11-2778-ag
Singh v. Holder
BIA
A073 628 064
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 31st day of July, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 DILBAR SINGH,
15 Petitioner,
16
17 v. 11-2778-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Randy Olen, Providence, Rhode
25 Island.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Daniel E. Goldman, Senior
29 Litigation Counsel; Puneet Cheema,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Dilbar Singh, a native and citizen of India, seeks
10 review of a June 23, 2011, decision of the BIA denying his
11 motion to reopen. In re Dilbar Singh, No. A073 628 064
12 (B.I.A. June 23, 2011). We assume the parties’ familiarity
13 with the underlying facts and procedural history of this
14 case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006). There is no dispute that Singh’s motion to
18 reopen was untimely because it was filed more than eight
19 years after the agency’s final order of removal.
20 See 8 U.S.C. § 1229a(c)(7)(C)(i). However, time limitations
21 on motions to reopen may be equitably tolled to accommodate
22 claims of ineffective assistance of counsel, provided that,
23 among other things, the movant has exercised “due diligence”
24 in vindicating his rights. Cekic v. INS, 435 F.3d 167, 170
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1 (2d Cir. 2006). An alien is required to exercise due
2 diligence in pursuing his case both before and after he has
3 or should have discovered the alleged ineffective
4 assistance. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d
5 Cir. 2008).
6 Here, the BIA reasonably found that Singh failed to
7 demonstrate that he had exercised due diligence.
8 Id. While the BIA credited Singh’s contention that he had
9 maintained regular contact with his prior counsel before
10 December 2005, it nevertheless reasonably found that Singh
11 did not recount any steps he had taken in pursuing his case
12 between December 2005, when Singh admittedly ceased
13 contacting his prior counsel, and October 2009, when Singh
14 consulted with a new attorney and allegedly discovered his
15 prior counsel’s ineffectiveness. See Cekic, 435 F.3d at 172
16 (denying motion to reopen where petitioners’ “submissions in
17 support of their second motion to reopen fail[ed] to provide
18 even the slightest indication that they took any action to
19 protect themselves”). Although Singh argues that he ceased
20 contacting his prior counsel in December 2005 because his
21 counsel insisted that “it would take many years for [his]
22 appeal to be decided” and had assured him that he would take
3
1 care of Singh’s case, the BIA reasonably determined that
2 Singh’s failure to contact his prior counsel to inquire as
3 to the status of his case for nearly four years did not
4 constitute due diligence. See Iavorski v. INS, 232 F.3d
5 124, 134 (2d Cir. 2000) (finding a lack of due diligence
6 when petitioner failed to investigate status of appeal for
7 “nearly two years”). Accordingly, the BIA did not abuse its
8 discretion in denying the motion to reopen.
9 Singh also challenges the BIA’s decision not to
10 exercise its authority to reopen his proceedings sua sponte.
11 Although we generally lack jurisdiction to consider the
12 BIA’s “entirely discretionary” decision declining to sua
13 sponte reopen a removal or deportation proceeding, see Ali,
14 448 at 518; Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
15 2009), we nevertheless retain jurisdiction to review such
16 decisions when the BIA misperceives the law, see Mahmood,
17 570 F.3d at 469. Here, however, the BIA did not misperceive
18 the law in finding that Singh failed to show extraordinary
19 circumstances warranting sua sponte reopening.
20 Moreover, even if we had jurisdiction to review such
21 decisions not to sua sponte reopen, the BIA did not err in
22 finding that Singh failed to demonstrate his prima facie
23 eligibility for CAT relief because, although the country
4
1 conditions evidence in the record indicated that individuals
2 held under custodial arrest or detention had been tortured
3 by Indian authorities, the record did not establish that
4 Singh would be arrested, detained, or otherwise placed under
5 custodial supervision upon his return to India. Nor did the
6 BIA err in finding that Singh failed to demonstrate his
7 prima facie eligibility for adjustment of status, as Singh
8 failed to present any documentary evidence that the I-130
9 immigrant visa petition that his wife filed on his behalf
10 had been approved, or that a visa number was immediately
11 available to him. See, e.g., 8 U.S.C. § 1255(a) (allowing
12 aliens who were inspected and admitted into the United
13 States to adjust their status to that of a lawful permanent
14 resident based on a family relationship, provided, inter
15 alia, that they are “eligible to receive an immigrant visa”
16 and “an immigrant visa is immediately available”); 8 U.S.C.
17 § 1255(i)(1) & (2) allowing certain aliens physically
18 present in the United States to adjust their status to that
19 of a lawful permanent resident based on a family
20 relationship or job offer, provided, inter alia, that they
21 are the beneficiaries of an approved visa petition, their
22 priority date is current, and they pay an additional fee).
23 For the foregoing reasons, the petition for review is
5
1 DENIED. As we have completed our review. Singh’s pending
2 motion for a stay of removal in this petition is DENIED as
3 moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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