Singh v. Gonzales, (2nd Cir. 2007)

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06-4396-ag

Singh v. Gonzales

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

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A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 18th day of April, two thousand seven.

PRESENT:

H O N . WILFRED FEINBERG,

H O N . CHESTER J. STRAUB,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges.

K A R M J I T SINGH,

Petitioner,

v. 06-4396-ag

NAC

A L B E R T O R. GONZALES, UNITED STATES

A T T O R N E Y GENERAL,

Respondent.

F O R PETITIONER: H e c t o r M. Roman, Roman & Singh, LLP,

J a c k s o n Heights, New York.

F O R RESPONDENT: B r e t t L. Tolman, United States A t t o r n e y for the District of Utah, A m y J. Oliver, Assistant United S t a t e s Attorney, Salt Lake City, Utah.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED that the petition for r e v i e w is DENIED.

Karmjit Singh, a native and citizen of India, seeks r e v i e w of a September 5, 2006 order of the BIA denying his m o t i o n to reopen and reconsider. In re Karmjit Singh, No. A79 0 8 4 659 (BIA September 5, 2006). 1 We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

P e t i t i o n e r did not timely petition for review of the June 2 , 2006 order of the BIA that affirmed the IJ's denial of his underlying asylum application. Therefore, our review is l i m i t e d to the BIA's decision not to reopen or reconsider.

S e e Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 89-90 ( 2 d Cir. 2001) (holding that "an appeal from a final order of 1 As a preliminary matter, the BIA properly construed S i n g h ' s motion as both a motion to reconsider and a motion t o reopen. See, e.g., Jie Chen v. Gonzales, 436 F.3d 76, 78 n . 5 (2d Cir. 2006). e x c l u s i o n or deportation and an appeal from a denial of a m o t i o n to reopen or reconsider that final order involve two s e p a r a t e petitions filed to review two separate final orders." ( i n t e r n a l quotations omitted)). We review the denial of a m o t i o n to reopen or reconsider for abuse of discretion, see S u k h r a j Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per c u r i a m ) , which will be found only "where the [BIA's] decision p r o v i d e s no rational explanation, inexplicably departs from e s t a b l i s h e d policies, is devoid of any reasoning, or contains o n l y summary or conclusory statements; that is to say, where t h e [BIA] has acted in an arbitrary or capricious manner," Wei G u a n g Wang v. BIA, 437 F.3d 270, 273 (2d Cir. 2006) (citations a n d internal quotation marks omitted).

M o t i o n to Reopen A motion to reopen "asks that the proceedings be reopened for new evidence and a new decision, usually after an e v i d e n t i a r y hearing." Zhao, 265 F.3d at 90. Such a motion " s h a l l not be granted unless it appears to the Board that evidence sought to be offered is material and was not a v a i l a b l e and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1); see also S e d i g h e h and Hessmaddin Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006). Failure to offer such evidence is, t h e r e f o r e , a proper ground on which the BIA may deny a motion t o reopen, as is the movant's failure to establish a prima f a c i e case for the underlying substantive relief sought. See I N S v. Assibi Abudu, 485 U.S. 94, 104-05 (1988).

I n the present case, the BIA did not abuse its discretion i n denying Singh's motion to reopen the proceedings. First, t h e BIA properly refused to consider those articles submitted b y Singh in support of his motion to reopen that predated the I J ' s decision because they were not previously unavailable.

S e c o n d , although the remaining articles support Singh's claim t h a t police in India generally mistreated Sikhs, they did not u n d e r m i n e the IJ's adverse credibility determination, which w a s the sole basis on which Singh's application was denied.

M o t i o n to Reconsider A motion to reconsider must specify errors of fact or law in the BIA's decision and be supported with pertinent authority. See 8 C.F.R. § 1003.2(b)(1); Zhao, 265 F.3d at 90.

A motion to reconsider "is a request that the Board reexamine i t s decision in light of additional legal arguments, a change o f law, or perhaps an argument or aspect of the case which was overlooked." In re Cerna, 20 I. & N. Dec. 399, 402 n.2 (BIA 1 9 9 1 ) (internal quotation marks omitted). "The BIA does not a b u s e its discretion by denying a motion to reconsider where the motion repeats arguments that the BIA has previously rejected." See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 ( 2 d Cir. 2006).

I n support of his motion to reconsider, Singh claimed that his statements regarding his arrests were not i n c o n s i s t e n t and that the other inconsistencies underlying the a d v e r s e credibility determination did not go to the heart of his claim. Because the BIA had already considered and r e j e c t e d these arguments in dismissing Singh's appeal of the f i n a l order of removal in his case, the BIA did not abuse its d i s c r e t i o n in denying Singh's motion to reconsider.

T h e petition for review is therefore DENIED. Having c o m p l e t e d our review, petitioner's pending motion for a stay o f removal in this proceeding is DISMISSED as moot.

F O R THE COURT: T h o m a s Asreen, Acting Clerk By:

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