Kulwinder Singh v. Loretta Lynch

Case: 14-60506 Document: 00513170737 Page: 1 Date Filed: 08/26/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60506
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 26, 2015
KULWINDER SINGH,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 944 795
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Kulwinder Singh, a native and citizen of India, petitions this court for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of
an Immigration Judge’s denial of a motion to reopen proceedings in which
Singh was ordered removed in absentia. Singh argues that his failure to
appear at the removal hearing was due to the ineffective assistance provided
by his counsel, Pablo Rocha, Esq., who failed to provide him notice of the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-60506 Document: 00513170737 Page: 2 Date Filed: 08/26/2015
No. 14-60506
hearing. He also argues that he received ineffective assistance of counsel from
Hillary Peldner, Esq. Singh contends that Peldner failed to file a motion to
reopen on his behalf and also failed to develop a record of Rocha’s ineffective
assistance of counsel.
This court usually only reviews the BIA’s decision; the underlying
decision of the IJ will be considered only if it influenced the determination of
the BIA. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002).
The denial of a motion to reopen is reviewed under a “highly deferential abuse-
of-discretion standard, regardless of the basis of the alien’s request for relief.”
Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
Singh did not argue in immigration proceedings that Rocha provided
ineffective assistance of counsel. As he did not exhaust this issue, this court
lacks jurisdiction to consider it. See Omari v. Holder, 562 F.3d 314, 319, 324-
25 (5th Cir. 2009); Xing Hai Wang v. Holder, 534 F. App’x 257, 258 (5th Cir.
2013). Moreover, the BIA correctly determined that for Singh to prevail with
his motion to reopen based upon Peldner’s ineffective assistance, he was
obligated to establish prejudice by making a prima facie showing that, but for
Peldner’s error, he would have been entitled to the relief that he sought. See
Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994). By failing to present
argument to the BIA establishing that his failure to appear at the hearing was
due to Rocha’s ineffective assistance of counsel, Singh failed to establish that
he would have prevailed in his motion to reopen. See Miranda-Lores, 17 F.3d
at 85. Accordingly, the BIA did not abuse its discretion in dismissing the
appeal.
Singh’s petition for review is DISMISSED, in part, for lack of jurisdiction
and DENIED, in part.
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