Singh v. Holder

10-423-ag
Singh v. Holder
BIA
A070 657 377
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 13th day of September, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 BILLU SINGH,
14 Petitioner,
15
16 v. 10-423-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Viney K. Gupta, Orange, California.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Brooke M. Maurer, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Billu Singh, a native and citizen of India, seeks
6 review of a January 22, 2010, order of the BIA denying his
7 motion to reopen his removal proceedings. In re Billu
8 Singh, No. A070 657 377 (B.I.A. Jan. 22, 2010). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA did not abuse its discretion by denying
17 Singh’s motion to reopen as time and number-barred, as it
18 was his second motion to reopen, filed more than five years
19 after his final order of removal. See id.; 8 C.F.R.
20 § 1003.2(c)(2). However, the time and number limitations do
21 not apply to a motion to reopen if it is based on “changed
22 country conditions arising in the country of nationality.”
2
1 8 U.S.C. § 1229a(c)(7); see 8 C.F.R. § 1003.2(c)(3)(ii). In
2 this case, because Singh did not present any evidence of
3 changed country conditions in India, the BIA did not abuse
4 its discretion in finding that he failed to demonstrate an
5 exception to the time and number limitations. See 8 U.S.C.
6 § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(3)(ii).
7 Although Singh claims that his removal order was
8 defective because he is actually Amarjit Singh Dhillon and
9 entered the United States on a visa, substantial evidence
10 supports the BIA’s refusal to credit that assertion given
11 Singh’s original asylum application, his testimony, and his
12 submission of a birth certificate in the name Billu Singh.
13 Singh also asserts that the BIA erred in declining to
14 toll the time for filing due to ineffective assistance of
15 counsel. In certain circumstances, an alien may toll the
16 time period for filing a motion to reopen by demonstrating
17 ineffective legal assistance. See Rabiu v. INS, 41 F.3d
18 879, 882 (2d Cir. 1994). In order to equitably toll the
19 time period, in addition to complying with the procedural
20 requirements for an ineffective assistance of counsel claim,
21 an alien must show prejudice as a result of the ineffective
22 assistance, and must have exercised due diligence in
3
1 pursuing the claim. See Jian Hua Wang v. BIA, 508 F.3d 710,
2 715 (2d Cir. 2007). Because Singh did not provide any
3 evidence to show that he had complied with the procedural
4 requirements enumerated in Matter of Lozada, 19 I. & N. Dec.
5 637 (BIA 1988), and did not present any claims of
6 ineffective assistance that could not have been presented
7 when he filed his first motion to reopen, the BIA did not
8 abuse its discretion in finding that Singh failed to
9 exercise the necessary due diligence. See Jian Hua Wang,
10 508 F.3d at 715.
11 Singh argues that his due process rights were violated
12 by the BIA’s failure to correct his defective removal order,
13 and to reopen proceedings so that he could claim relief as
14 the battered spouse of a United States citizen. However,
15 because the BIA did not abuse its discretion in either
16 respect, Singh’s due process claim is without merit.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5