Singh v. Holder

09-3021-ag
Singh v. Holder
BIA
A090 234 465
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 7th day of April, two thousand eleven.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
AVTAR SINGH,
Petitioner,
v. 09-3021-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Avtar Singh, pro se, Valley Stream,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Paul Fiorino,
Senior Litigation Counsel; Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Avtar Singh, a native and citizen of India,
seeks review of the BIA’s June 22, 2009, decision denying
his motion to reopen. In re Avtar Singh, No. 090 234 465
(B.I.A. June 22, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history of this
case.
As an initial matter, we generally lack jurisdiction to
review a final order of removal resulting, as in this case,
from a conviction for a crime of moral turpitude. 8 U.S.C.
§§ 1252(a)(2)(C), 1182(a)(2)(A)(i)(I). Notwithstanding this
provision, we retain jurisdiction to review “constitutional
claims” and “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
Here, Singh’s claim that he was prejudiced by ineffective
assistance of counsel raises a constitutional issue over
which we retain jurisdiction. 8 U.S.C. § 1252(a)(2)(D);
Iavorski v. INS, 232 F.3d 124, 134-35 (2nd Cir. 2000). We
review the BIA’s denial of a motion to reopen for abuse of
discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006).
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It is undisputed that Singh’s January 2009 motion to
reopen was untimely, because it was filed more than one year
after the BIA’s December 2007 decision. 8 C.F.R.
§ 1003.2(c)(2). However, under the doctrine of equitable
tolling, an alien who demonstrates ineffective assistance of
counsel may be excused from compliance with the applicable
time bar. See Rashid v. Mukasey, 533 F.3d 127, 130-131 (2d
Cir. 2008). Singh argues that the ineffective assistance of
his former counsel should have excused the untimely filing
of the motion.
In order to warrant equitable tolling, an alien must
demonstrate, inter alia, that he was prejudiced by counsel’s
ineffective performance. Rabiu v. INS, 41 F.3d 879, 882 (2d
Cir. 1994). To show prejudice, the alien “must allege facts
sufficient to show 1) that competent counsel would have
acted otherwise, and 2) that he was prejudiced by his
counsel’s performance.” Id. at 882 (internal quotation
marks omitted). Singh argues that he was prejudiced by
counsel’s failure to adequately prepare him for his hearing
“by advising him about the type of questions that could be
asked” and asserts that if counsel had so prepared him, he
“would have refreshed his memory before going on the stand
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and would have answered the . . . questions more coherently
and thus could have avoided the adverse credibility
finding.” This argument is unavailing, as Singh was asked
about facts with respect to his own life, including the
number of times his driver’s license was suspended, facts
about his criminal history, and information about his
income. The inconsistencies internal to Singh’s testimony,
as well as between his testimony and other evidence, are too
significant to be attributable to lack of preparation by
Singh’s counsel. Zheng Zhong Chen v. Gonzales, 437 F.3d
267, 270 (2d Cir. 2006) (“While petitioner[] may assert a
claim of ineffective assistance of counsel . . . due process
does not insulate a petitioner from the consequence of his
own dishonest acts.”). Because Singh failed to demonstrate
that he was prejudiced by ineffective assistance of counsel,
the BIA did not abuse its discretion in denying his motion
to reopen as untimely.
For the foregoing reasons, these petitions for review
are DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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