Singh v. Holder

09-3446-ag
Singh v. Holder
BIA
A070 582 181
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22 nd day of June, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 MANJIT SINGH,
14 Petitioner,
15
16 v. 09-3446-ag
17 NAC
18 ERIC H. HOLDER, JR., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Glen L. Formica, New Haven,
24 Connecticut.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Terri J. Scadron, Assistant
28 Director, Corey L. Farrell,
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Manjit Singh, a native and citizen of India,

6 seeks review of the July 14, 2009, order of the BIA denying

7 his motion to reopen. In re Manjit Singh, No. A 070 582 181

8 (B.I.A. July 14, 2009). We assume the parties’ familiarity

9 with the underlying facts and procedural history of the

10 case.

11 The BIA did not abuse its discretion in denying Singh’s

12 untimely motion to reopen. See Ali v. Gonzales, 448 F.3d

13 515, 517 (2d Cir. 2006). The regulations provide that “[a]

14 party may file only one motion to reopen deportation or

15 exclusion proceedings . . . and that motion must be filed no

16 later than 90 days after the date on which the final

17 administrative decision was rendered in the proceeding

18 sought to be reopened, or on or before September 30, 1996,

19 whichever is later.” 8 C.F.R. § 1003.2(c)(2). Singh does

20 not dispute that his June 2009 motion was untimely. Rather,

21 he argues that the BIA should have tolled the time

22 limitations to accommodate his ineffective assistance of

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1 counsel claim. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

2 2006).

3 In order to warrant equitable tolling, an alien is

4 required to demonstrate “due diligence” in pursuing his

5 claims during “both the period of time before the

6 ineffective assistance of counsel was or should have been

7 discovered and the period from that point until the motion

8 to reopen is filed.” See Rashid v. Mukasey, 533 F.3d 127,

9 135 (2d Cir. 2008). The BIA did not abuse its discretion in

10 declining to equitably toll the filing deadline for Singh’s

11 motion to reopen because, as it found, he failed to

12 demonstrate that he exercised due diligence in pursuing his

13 claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

14 2007). Singh argues that he exercised due diligence because

15 he discovered his prior attorney’s ineffective assistance in

16 November 2008 and filed his motion to reopen in June 2009.

17 However, as the BIA found, it does not appear that Singh

18 took any steps to determine the status of his petition in

19 the more than three years after it was filed. He then

20 waited an additional seven months to file his motion to

21 reopen after discovering that counsel’s law license was to

22 be suspended. Under these circumstances, we find no error

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1 in the BIA’s conclusion that Singh did not exercise the

2 requisite due diligence. See Rashid, 533 F.3d at 135.

3 Accordingly, we need not consider his argument that he was

4 prejudiced by the allegedly ineffective assistance he

5 received. See Cekic, 435 F.3d at 170.

6 For the foregoing reasons, the petition for review is

7 DENIED. As we have completed our review, any stay of

8 removal that the Court previously granted in this petition

9 is VACATED, and any pending motion for a stay of removal in

10 this petition is DISMISSED as moot. Any pending request for

11 oral argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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