NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 10-4430
____________
SHASRIE SINGH,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A079-117-515)
Immigration Judge: Frederic G. Leeds
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 24, 2011
Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed June 8, 2011)
____________
OPINION
____________
PER CURIAM
Shasrie Singh (“Singh”) petitions for review of the Board of Immigration Appeals‟
final order of removal. For the reasons that follow, we will deny the petition for review.
Singh, a native and citizen of Guyana, entered the United States illegally in
February, 2001. On October 18, 2001, he was issued a Notice to Appear, which charged
that he is removable under Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8
U.S.C. § 1182(a)(6)(A)(i), as an alien who entered without admission or parole. On
November 14, 2001, Singh appeared before the Immigration Judge with counsel, Brian
Tucker, and conceded removability. Singh applied for voluntary departure. The IJ
granted his application and set his departure date for March 14, 2002, and, in the
alternative, the IJ ordered his removal to Guyana. The parties waived an appeal to the
Board of Immigration Appeals. A.R. 172.
Singh failed to voluntarily depart the United States. On April 2, 2009, Singh,
through new counsel, filed a motion to reopen proceedings with the IJ. He sought
reopening because his United States citizen daughter, Nadira, had asthma and allergies.
Singh alleged that she would suffer hardship if he was removed from the United States.
Singh conceded that his motion was filed beyond the filing deadline, but he argued that
the deadline should be tolled because he had received ineffective assistance of counsel
during his 2001 removal proceedings. In an affidavit, he claimed that he paid someone
$2,000 to file an appeal. The individual, who was not identified, took his money but did
not file an appeal. Singh contended that he only recently discovered that no appeal had
been filed. A.R. 186.
On April 21, 2009, the IJ denied the motion to reopen. After reviewing the record
of proceedings, including the audiotape of the November 14, 2001 hearing, the IJ
determined that the motion was untimely because Singh filed it more than seven years
late, see 8 C.F.R. § 1003.23(b)(1). The IJ further determined that, with respect to his
claim for equitable tolling of the filing deadline, Singh failed to comply with the
evidentiary requirements of Matter of Compean, 24 I. & N. Dec. 710 (A.G. January 7,
2
2009), and failed to establish deficient performance by his counsel. In addition, Singh
had not made out a prima facie case for cancellation of removal.
Singh, through counsel, appealed to the Board. In support of the appeal, Singh
submitted additional exhibits. During the pendency of the appeal, the Attorney General
vacated his original decision, see Matter of Compean, 25 I. & N. Dec. 1 (A.G. June 03,
2009), and reinstated the previously established standards for adjudicating motions to
reopen based on a claim of ineffective assistance of counsel, see Matter of Lozada, 19 I.
& N. Dec. 637 (BIA 1988). The Board, on January 8, 2010, remanded Singh‟s case to
the IJ for reconsideration of the ineffective assistance of counsel claim under the newly-
reinstated standards.
On remand, the IJ gave Singh an opportunity to submit new arguments and
additional evidence in support of his untimely motion to reopen. Singh, through counsel,
submitted new documents in support of cancellation of removal, and new claims for
adjustment of status and asylum, with supporting documents, including: (1) a marriage
certificate, showing his marriage to Sonia Lee Croote on June 27, 2009; (2) a Form I-130
petition for an immediate relative visa which had been filed with the U.S. Citizenship and
Immigration Services (“USCIS”); (3) a Form I-485 application for adjustment of status;
(4) a medical record for Nadira; (5) an affidavit of Khemwattie Ramsingh; and (6) an
article titled “Prison officer killed in Mash Day jailbreak” and published in the Sunday
Chronicle on February 24, 2002. Singh also argued that his marriage was bona fide.
On April 1, 2010, the IJ again denied Singh‟s motion to reopen as untimely filed.
The IJ again concluded that Singh‟s ineffectiveness claim was an insufficient basis to toll
the filing deadline for a motion to reopen. The IJ reasoned that Singh had not complied
3
with Lozada‟s procedural requirements. As an initial matter, Singh did not even clarify
whether his claim was directed at Brian Tucker or someone else. In any event, he did not
notify “former counsel” of the ineffective assistance allegations and give counsel an
opportunity to respond, and his reason for not doing so was weak. Singh also failed to
file a complaint with the appropriate disciplinary authorities or give an adequate
explanation for not doing so.
In addition, the IJ determined that Singh did not show a reasonable likelihood that
the outcome of his removal proceedings would have been different had prior counsel‟s
representation not been deficient, see Fadiga v. Att‟y Gen. of U.S., 488 F.3d 142, 159 (3d
Cir. 2007) (holding that standard for prejudice in immigration context is “a reasonable
probability that, but for counsel‟s professional errors, the result of the proceeding would
have been different”). The IJ noted that the consequences for failing to depart, including
with respect to adjustment of status, had been explained to Singh, and he indicated that he
understood. A.R. 57.
With respect to his new claim for adjustment of status based on a bona fide
marriage, the IJ noted that it appeared that Singh was statutorily ineligible because he had
failed to depart voluntarily after agreeing to do so. The IJ also found that Singh failed to
show by clear and convincing evidence that his marriage to Sonia Croote was bona fide,
see 8 C.F.R. § 204.2(a)(1)(iii)(B). With respect to his cancellation of removal claim, the
IJ found that, even if his motion to reopen was not time-barred, Singh failed to make a
prima facie showing that he had ten years‟ physical presence in the United States, or a
qualifying relative who would suffer exceptional or extremely unusual hardship if he was
removed, see Matter of Monreal, 23 I. & N. Dec. 56 (BIA 2001). With respect to his new
4
claim for asylum, the IJ considered whether Singh established that reopening was
warranted under the statutory exception to the time limit for filing motions to reopen to
apply for asylum. The IJ determined that the new evidence Singh submitted with his
motion to reopen did not show changed country conditions in Guyana that materially
affected his eligibility for asylum.
Singh appealed to the Board. On August 5, 2010, the Board dismissed the appeal,
determining that the IJ‟s factual findings were not clearly erroneous, and affirming and
adopting the IJ‟s legal conclusions. The Board emphasized that the IJ correctly found
that Singh‟s motion to reopen was untimely, and that he failed to establish ineffective
assistance of counsel sufficient to toll the filing deadline. The Board also emphasized
that Singh did not establish a reasonable likelihood that he was eligible for cancellation of
removal, explaining that Singh could not meet the requirement of ten years‟ physical
presence in that he had admitted that he entered the United States in 2001, shortly before
the issuance of the Notice to Appear; and he did not show that he could meet the hardship
requirement. With respect to asylum and withholding of removal, the Board reasoned
that the IJ correctly found that Singh had not established a change in country conditions
sufficient to excuse the untimeliness of his motion to reopen. Last, the Board agreed with
the IJ that Singh was barred from adjusting his status, because he had violated his
voluntary departure order. Thus, his argument regarding the bona fides of his marriage
was irrelevant.
Singh timely petitioned for review, and filed a motion to stay removal, which the
government opposed. In his motion for a stay, Singh asserted that his immediate relative
visa petition and adjustment of status application had been approved. See Petitioner‟s
5
Motion for Stay, at ¶ 5. He stated that he has been married to a U.S. citizen since June
27, 2009, see id., and he stated that he has been trying to complete the adjustment of
status process,” see id. at ¶ 9. In his reply to the government‟s opposition to a stay, see
Fed. R. App. Pro. 27(a)(4) (authorizing a reply to a response in opposition to a motion),
Singh further argued that, because his immediate relative petition and adjustment of
status application had been approved, he should be “released” based on the “new Policy.”
See Petitioner‟s Reply, at 4. Singh attached to his Reply a FOX NEWS internet article,
addressing an August 20, 2010 memorandum written by Department of Homeland
Security Assistant Secretary John Morton on the subject of the government‟s removal
priorities. We granted Singh‟s motion to stay removal and ordered the government to
address the Morton memorandum in its brief, and to advise us about the status of Singh‟s
adjustment of status application.
The parties have submitted their briefs and the matter is now ripe for decision. In
his Informal Brief, Singh argues that the Board “failed to make the correct ruling based
on the evidence they failed to grant my asylum and failed to grant green card.”
Petitioner‟s Informal Brief, at 1.
We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). We will deny the
petition for review. Where the Board determines, as it did here, that the IJ‟s factual
findings are not clearly erroneous and expressly adopts the IJ‟s legal conclusions, we
review the decisions of both the IJ and the Board. See Chen v. Ashcroft, 376 F.3d 215,
222 (3d Cir. 2004). We review the Board‟s denial of a motion to reopen for an abuse of
discretion. Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323 (1992).
Under this deferential standard of review, we will not disturb the Board‟s decision unless
6
it is arbitrary, irrational, or contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562
(3d Cir. 2004). Motions to reopen removal proceedings are “disfavored” because, “„as a
general matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.‟” Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.
2001) (quoting Doherty, 502 U.S. at 323).
Singh‟s motion to reopen was not filed within 90 days of the final order of
removal and it was thus untimely filed under 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. §
1003.23(b)(1). Attorney conduct can provide a basis for equitable tolling of the ninety-
day deadline if the alien shows that he was diligent in bringing his claim, Mahmood v.
Gonzales, 427 F.3d 248, 252-53 (3d Cir. 2005); Borges v. Gonzales, 402 F.3d 398, 407
(3d Cir. 2005). We conclude that the agency‟s decision that Singh failed to establish
ineffective assistance of counsel under Lozada, 19 I. & N. Dec. 637, and thus was not
entitled to equitable tolling of the deadline, was not an abuse of its discretion. A due
process claim of ineffective assistance of counsel in immigration proceedings should be
supported by an affidavit that sets forth in detail the facts supporting the claim and the
agreement that was entered into with prior counsel with respect to the actions to be taken.
See id. at 639. In addition, prior counsel must be informed of the allegations and allowed
the opportunity to respond. See id. The motion to reopen also should address whether a
complaint has been filed with the appropriate disciplinary authorities, and if not, why not.
See id. See also Lu, 259 F.3d at 132-33 (Board‟s procedural requirements for asserting
claim of ineffective assistance of counsel are generally reasonable exercise of its
discretion).
7
As found by the IJ, Singh did not notify his former counsel of his ineffective
assistance claim or give him the opportunity to respond. Singh claimed that this failure
was because the attorney‟s office was no longer located at the same address, A.R. 186,
but this explanation is weak, self-serving, and insufficient to show that Lozada‟s
requirements should be excused. Some effort could have been made to locate former
counsel to give him notice and an opportunity to respond. Singh‟s reason for not filing a
bar complaint was similarly weak. As to whether Singh suffered prejudice, the IJ
correctly determined that he did not show a reasonable likelihood that the outcome of the
proceedings would have been different had prior counsel pursued an appeal, see Fadiga,
488 F.3d at 159. Singh‟s affidavit in support of his motion to reopen fails to explain any
basis for an appeal, and none is suggested by the circumstances. Singh failed to identify
any arguments he would have raised on appeal that would have affected the outcome of
his proceedings in light of his concession of removability and acceptance of voluntary
departure. If Singh is suggesting that prior counsel should have moved on appeal for a
remand so that Singh could file an application for cancellation of removal, A.R. 186, any
such application would have failed, because, as the agency noted, Singh could not meet
the statutory 10 years‟ physical presence requirement, see 8 U.S.C. § 1229b(b)(1)(A).
See also 8 U.S.C. § 1229d(d)(1) (continuous physical presence deemed to end when alien
is served with notice to appear).
Thus, the denial of Singh‟s motion to reopen as untimely filed was not arbitrary,
irrational, or contrary to law, and the IJ properly exercised his discretion in denying the
motion to reopen. Because the motion was time-barred, the merits of Singh‟s adjustment
of status argument need not be addressed. Nevertheless, we note that the agency may
8
deny a motion to reopen based on the failure to establish a prima facie case for the relief
sought. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105 (1988); Matter
of Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992). Singh cannot show that he is prima
facie eligible to adjust his status. He failed to voluntarily depart, and, therefore, he is
statutorily ineligible to adjust his status for a period of 10 years under 8 U.S.C. §
1229c(d)(1)(B), or until March, 2012, according to the government, see Respondent‟s
Brief, at 25. Moreover, although Ms. Croote‟s immediate relative petition was approved,
Singh‟s adjustment of status application was denied by USCIS on February 23, 2011 for
lack of jurisdiction. See Respondent‟s Brief, at 27-28. Singh may only adjust his status
by reopening removal proceedings; he may not do so through USCIS. See 8 C.F.R.
§1245.2(a)(1)(i) (“In the case of any alien who has been placed in deportation
proceedings or in removal proceedings (other than as an arriving alien), the immigration
judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for
adjustment of status the alien may file.”).1
There is no time limit on the filing of a motion to reopen in order to apply for
asylum if the motion “is based on changed country conditions arising in the country of
nationality or the country to which removal has been ordered, if such evidence is material
and was not available and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i). Singh sought
reopening to apply for asylum based on changed country conditions in Guyana, but he
1
The government has further contended that the Morton memorandum does not apply to
aliens who are under a final order of removal or statutorily ineligible for adjustment of
status. See Respondent‟s Brief, at 28-29.
9
did not establish what country conditions were in Guyana at the time of his November,
2001 hearing, how they had worsened since that time, or how the purported change was
material to his claim for asylum. The IJ thus did not abuse his discretion in determining
that this exception to the filing deadline did not apply.
In addition, Singh was required to make a prima facie showing that he was a
person who was unable to return to his home country because of persecution on account
of race, religion, nationality, membership in a particular social group, or political opinion.
8 C.F.R. §§ 1208.13(b)(1); Camara v. Att‟y Gen. of U.S., 580 F.3d 196, 202 (3d Cir.
2009). Singh submitted no asylum application with his motion to reopen, see 8 C.F.R. §
1003.23(b)(3) (“Any motion to reopen for the purpose of acting on an application for
relief must be accompanied by the appropriate application for relief and all supporting
documents.”). In addition, his two pieces of evidence do not support a claim for asylum.
Each item reports on a violent jailbreak at the Georgetown prison in early 2002. This
evidence does not establish that conditions in Guyana have worsened since November,
2001 for any protected group to which Singh might belong. Accordingly, the agency‟s
conclusion that Singh failed to establish changed country conditions that materially
affected his asylum eligibility was not an abuse of discretion.
For the foregoing reasons, we will deny the petition for review.
10