Singh v. Barr

19-732
Singh v. Barr
BIA
A201 292 537
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 Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 27th day of October, two thousand twenty.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
KARNAIL SINGH,
Petitioner,
v. 19-732
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Karnail Singh, pro se, Richmond
Hill, NY.
FOR RESPONDENT: Jeffrey Bossert Clark, Acting
Assistant Attorney General; Kiley
Kane, Senior Litigation Counsel;
Andrea N. Gevas, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Karnail Singh, a native and citizen of India,
seeks review of a February 22, 2019, decision of the BIA,
denying his motion to reopen. In re Karnail Singh, No. A201
292 537 (B.I.A. Feb. 22, 2019). We assume the parties’
familiarity with the underlying facts and procedural history.
We review the denial of a motion to reopen “deferentially
for abuse of discretion,” finding “such abuse only if the
BIA's decision-making was arbitrary or capricious” and
“review[ing] the BIA’s fact-finding only for substantial
evidence.” See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-
69 (2d Cir. 2008) (internal quotation marks omitted). In his
motion to reopen, Singh asserted that, because the Congress
Party had gained power in India, police had arrested and
abused his wife in an effort to locate and arrest him on
account of his membership in the Sikh-affiliated Akali Dal
Mann Party. As support, he submitted his own written
statements and general country conditions evidence.
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It is undisputed that Singh’s 2018 motion was untimely
because it was filed more than two years after his removal
order became final in 2015. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the
time limitation for filing a motion to reopen does not apply
if reopening is sought to apply for asylum and the motion “is
based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered,
if such evidence is material and was not available and would
not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3).
“[T]o prevail on a motion to reopen alleging changed
country conditions where the persecution claim was previously
denied based on an adverse credibility finding . . . , the
[movant] must either overcome the prior determination or show
that the new claim is independent of the evidence that was
found to be not credible.” Matter of F-S-N-, 28 I. & N. Dec.
1, 3 (BIA 2020); see also Kaur v. BIA, 413 F.3d 232, 234 (2d
Cir. 2005) (“[E]vidence submitted by petitioner in support of
. . . motion was not ‘material’ because it did not rebut the
adverse credibility finding that provided the basis for the
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IJ’s denial of petitioner’s underlying asylum application.”).
The BIA did not err in concluding that Singh’s unsworn
statement that Indian police had abused his wife in an attempt
to locate and arrest him for political reasons and the
evidence of general conditions in India failed to overcome
the underlying adverse credibility determination. That
evidence did not address the findings that formed the basis
for the adverse credibility determination—Singh’s
inconsistent statements regarding his alleged beatings on
account of his political activities. See Kaur, 413 F.3d at
234; Matter of F-S-N-, 28 I. & N. Dec. at 3. Accordingly,
because Singh failed to overcome the adverse credibility
determination, the BIA did not abuse its discretion in denying
his untimely motion to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2); Kaur, 413 F.3d
at 234.
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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