Singh v. Mukasey, (2nd Cir. 2008)
Linked as:
Text
07-2551-ag
Singh v. Mukasey
BIA
A73 546 993
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 15 th day of August, two thousand eight.
PRESENT:
HON. ROSEMARY S. POOLER,
HON. SONIA SOTOMAYOR,
HON. REENA RAGGI,
Circuit Judges.
DAVINDER SINGH,
Petitioner,
v. 07-2551-ag
NAC
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
et al., 1
Respondents.
FOR PETITIONER: Sandro S. Paterno, Bayonne, New Jersey.
FOR RESPONDENTS: Jeffrey S. Bucholtz, Acting Assistant Attorney General, Linda S. Wernery, Assistant Director, Thankful T.
Vanderstar, Attorney, Office of Immigration Litigation, U.S.
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 Davinder Singh, a native and citizen of India, seeks review of the June 7, 2007 order of the BIA denying his motion to reopen. In re Davinder Singh, No. A73 546 993 (B.I.A. June 7, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA's decision "provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Id. at 233-34.
It is beyond dispute that Singh's motion to reopen was untimely and number barred, and we find no abuse of discretion in the BIA's finding that he did not qualify for an exception to the time and numerical limitations applicable to such motions. See 8 C.F.R. § 1003.2(c)(2).
1. Due Diligence In certain circumstances, an alien may toll the time limit applicable to his motion to reopen by demonstrating ineffective assistance of counsel. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994). However, in addition to showing prejudice and complying with the requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), the alien must show that he exercised due diligence during the period he sought to toll. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). "[N]o matter how egregiously ineffective counsel's assistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled." Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006).
Singh argues that the time limit should have been equitably tolled in his case. However, we find no abuse of discretion in the BIA's conclusion that Singh failed to demonstrate that he exercised due diligence during the period he sought to toll. A reasonable person in Singh's position would arguably have discovered his prior counsel's ineffective assistance of counsel on April 30, 2001, when the BIA issued its decision affirming the IJ's in absentia removal order. See Jian Hua Wang, 508 F.3d at 715. Indeed, in the BIA's April 2001 decision denying Singh's motion to rescind the IJ's in absentia order, the BIA stated that "counsel was not limited to providing notice of the newly scheduled hearing by phone and could have, for instance, mailed a copy of the notice to [Singh] or informed him of the hearing in person." In Re Davinder Singh, No. A73 546 993 (B.I.A. April 30, 2001). Because this language strongly suggests that Singh's prior counsel should have taken more steps to notify Singh about his rescheduled hearing before the IJ, we find that Singh should have reasonably discovered his prior counsel's ineffective assistance of counsel when he received the BIA's April 2001 decision. Singh has never asserted that he did not receive that decision.
Singh has not demonstrated that he exercised due diligence between September 2002, when the BIA denied his first motion to reopen, and May 2007, when he filed his second motion to reopen. Indeed, there is no evidence in the record to indicate what Singh did during this interval.
Accordingly, the BIA reasonably determined that Singh failed to exercise due diligence in pursuing his ineffective assistance of counsel claim. See Cekic, 435 F.3d at 171-72.
2. Changed Country Conditions We also find that the BIA did not abuse its discretion in finding that Singh failed to show that his motion to reopen qualified for an exception to the time and numerical limitations based on "changed country conditions" in India.
See 8 C.F.R. § 1003.2(c)(3)(ii). Singh's motion to reopen states that "[t]he . . . documentation attests that [his aunt and uncle] were killed in June 2006 because of their son and nephew's involvement with the All India Sikh Student Foundation." The BIA, however, stated: "[w]hile we sympathize with [Singh] regarding the loss of his family members, he has explained, in his current motion, only that the situation in India continues as it did when he filed his initial" asylum application. Indeed, none of the evidence Singh submitted with his motion demonstrates that country conditions in India have changed. Instead, his evidence reveals that the same type of violence that formed the basis of his original asylum claim continues to occur. Indeed, Singh admitted as much when he stated in his motion to reopen that his aunt and uncle "are the latest members of [his] family to fall victims of the sectarian violence that had already claimed the life of [his] cousin on February 27, 1995." Under these circumstances, the BIA did not abuse its discretion in finding that Singh failed to demonstrate changed country conditions.
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as a respondent in this case.
Sponsored links
