Bishan Singh v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION OCT 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BISHAN SINGH, No. 08-71229
Petitioner, Agency No. A075-310-023
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 15, 2012
San Francisco, California
Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.**
Petitioner Bishan Singh (“Singh”), a native and citizen of India, seeks
review of two orders by the Board of Immigration Appeals (“BIA”). The first BIA
order affirmed the Immigration Judge’s (“IJ”) decision, which had found Singh
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
was not credible, denied Singh’s requests for relief from removal, and ordered
Singh removed. The second BIA order denied Singh’s motion to reopen removal
proceedings based on ineffective assistance of counsel and changed country
conditions. We dismiss the petition as to the Convention Against Torture claim
and deny the remainder of the petition.1
Singh’s submission of a membership card in the All-Indian Sikh Students
Federation (“AISSF”), which appeared fraudulent, and the material contradictions
between Singh’s testimony and his asylum application concerning the purpose and
general description of a rally and his treatment by the police constitute substantial
evidence sufficient to supports the IJ’s adverse credibility finding. See Zamanov
v. Holder, 649 F.3d 969, 973–74 (9th Cir. 2011); Khadka v. Holder, 618 F.3d 996,
1001 (9th Cir. 2010).
The BIA did not abuse its discretion in denying Singh’s motion to reopen
based on ineffective assistance of counsel before the IJ and BIA because Singh
failed to demonstrate that his attorney’s conduct rendered the proceedings
fundamentally unfair or resulted in prejudice. Mohammed v. Gonzales, 400 F.3d
1
Singh raises for the first time on appeal a request for relief under the
Convention Against Torture (“CAT”). Singh did not request this form of relief
before the IJ and Singh failed to present a substantive argument on this issue
before the BIA. Thus, Singh has not exhausted his administrative remedies and we
do not have jurisdiction to consider this claim.
2
785, 793–94 (9th Cir. 2005). Assuming Singh’s motion to reopen was timely,
Singh failed to establish that his attorney’s conduct may have altered the outcome
of the proceedings because Singh’s credibility would have been compromised
regardless, given Singh’s presentation of the likely fraudulent membership card.
The BIA also did not abuse its discretion in denying Singh’s motion to
reopen based on changed country conditions. Singh’s proffered information
purporting to establish his membership in the AISSF was previously available and
thus, cannot support his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
Singh failed to present new evidence linking his fear of future persecution to a
protected group and, therefore, has failed to establish prima facie eligibility for
relief from removal. See Toufighi v. Mukasey, 538 F.3d 988, 996–97 (9th Cir.
2008). Moreover, Singh failed to present any evidence that could upset his adverse
credibility finding or demonstrate a material change in the treatment of Sikhs in
India.
PETITION DISMISSED in part and DENIED in part.
3