09-2107-ag (L); 10-1496-ag (Con)
Singh v. Holder
BIA
A070 552 838
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.
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 12th day of April, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
SATWINDER SINGH,
Petitioner,
09-2107-ag(L);
v. 10-1496-ag(Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore N. Cox, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Shelley R. Goad, Assistant
Director; Nancy K. Canter, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States 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 Satwinder Singh, a native and citizen of
India, seeks review of a May 6, 2009 order of the BIA
denying his motion to reopen and a March 29, 2010 order of
the BIA denying his motions to terminate, reconsider, and
reopen his proceedings. In re Satwinder Singh, No. A070 552
838 (B.I.A. May 6, 2009), In re Satwinder Singh, No. A070
552 838 (B.I.A. Mar. 29, 2010). 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 Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006) (per curiam). It is undisputed that Singh’s
2009 motion to reopen was untimely, as the BIA issued the
final administrative decision in the removal proceeding
sought to be reopened in 2002, and number-barred, as it was
his fourth motion to reopen. 8 C.F.R. § 1003.2(c)(2); see
also 8 U.S.C. § 1229a(c)(7)(A), (C). Although the time and
number limitations may be excused to accommodate claims of
ineffective assistance of counsel, see Jin Bo Zhao v. INS,
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452 F.3d 154, 159-60 (2d Cir. 2006) (per curiam); Cekic v.
INS, 435 F.3d 167, 170 (2d Cir. 2006), we conclude that the
BIA did not abuse its discretion in denying the motion to
reopen based on its determination that Singh failed to
demonstrate that he exercised due diligence in vindicating
his rights during the entire period for which he seeks
equitable tolling. See Rashid v. Mukasey, 533 F.3d 127, 132
(2d Cir. 2008).
As the agency noted, Singh has never indicated with any
specificity when he learned of his former counsels’ alleged
ineffective assistance, and does not clearly explain what
steps he took in pursuing his case from 2002 until 2006. In
addition, the agency correctly observed that the record
contains contradictory indications as to when Singh first
learned of the BIA’s November 27, 2006 decision denying his
motion to reopen, and it is undisputed that Singh did not
act to pursue his case between June 2008, when his former
counsel wrote a letter to the Department of Homeland
Security referencing the BIA’s November 2006 decision, and
February 2009, when Singh was arrested. The BIA did not
abuse its discretion in concluding, based on this unclear
record, that Singh failed to demonstrate that he acted with
sufficient diligence for the entire period between October
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2002, when his first motion to reopen would have been due
following the BIA’s July 2002 affirmance of the denial of
Singh’s asylum application, and March 2009, when Singh’s
present counsel moved to reopen based on the alleged
ineffective assistance of prior counsel. See id. (requiring
petitioner to exercise due diligence both before and after
he has, or should have, discovered the ineffective
assistance and holding that the BIA did not abuse its
discretion in finding that a delay of 14 months, in the
circumstances of that case, demonstrated a lack of
diligence); Cekic, 435 F.3d at 171-72 (affirming the BIA’s
denial of petitioners’ motion to reopen based on ineffective
assistance of counsel when petitioners failed to present any
evidence or indication that they were diligent during two of
the years they wished to toll).
Next, we find to be without merit Singh’s argument that
the BIA erred by refusing to reconsider its May 2009 denial
of reopening because that decision was based on the vacated
decision in Matter of Compean, 24 I. & N. Dec. 710 (A.G.
2009), see Matter of Compean, 25 I. & N. Dec. 1, 3 (A.G.
2009) (vacating the Attorney General’s prior decision). The
BIA correctly held that the decisions in Compean did not
affect a petitioner’s burden of demonstrating due diligence
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during the entire period sought to be tolled. See Rashid,
533 F.3d at 132.
Singh’s challenge to the BIA’s denial of his motion to
terminate is likewise without merit. Singh contends that
his Notice to Appear (“NTA”) should be cancelled pursuant to
8 C.F.R. § 239.2 because it was improvidently issued, in
that it incorrectly charges that Singh was not admitted or
paroled after inspection by an immigration officer, when
Singh had in fact been paroled into the United States.
However, at his initial hearing before the Immigration
Judge, Singh admitted to the government’s factual
allegations and conceded his removability as an alien
admitted without inspection. This concession arguably
waives any challenge based on an alleged defect in the NTA.
See Nolasco v. Holder, --- F.3d ---, 2011 WL 668035, at *2
(2d Cir. Feb. 25, 2011). In any event, Singh has failed to
establish that any inaccuracy in the NTA would require
cancellation of that notice. While an NTA must list, inter
alia, “[t]he charges against the alien and the statutory
provisions alleged to have been violated,” 8 U.S.C. §
1229(a)(1)(D), it does not follow that the NTA must be
withdrawn as improvidently issued merely because the alien
contests the allegations of removability. Rather, to the
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extent the alien takes issue with the allegations of
removability contained in the NTA, that issue may be pursued
during the removal proceedings. See 8 U.S.C. § 1229a(c).
Moreover, Singh identifies no prejudice arising from this
alleged defect in the NTA, as Singh concedes that he is
otherwise removable, and the agency has not denied any
application for adjustment of status by reason of Singh’s
alleged entry without inspection. In these circumstances,
we detect no error in the BIA’s denial of the motion to
terminate.
Finally, we lack jurisdiction to review the BIA’s
decision not to reopen Singh’s case sua sponte under
8 C.F.R. § 1003.2(a). See Ali v. Gonzales, 448 F.3d at 518.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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