Singh v. Holder

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
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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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