Singh v. Holder

13-1553 Singh v. Holder BIA A079 141 286 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 9th day of May, two thousand fourteen. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _________________________________________ 12 13 SUKHWINDER SINGH, 14 Petitioner, 15 16 v. 13-1553 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Robert B. Jobe, San Francisco, 24 California. 25 26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 27 General; Douglas E. Ginsburg, 28 Assistant Director; Katherine A. 29 Smith, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Sukhwinder Singh, a native and citizen of 6 India, seeks review of the April 15, 2013, order of the BIA 7 denying his fifth motion to reopen. In re Sukhwinder Singh, 8 No. A079 141 286 (B.I.A. Apr. 15, 2013). We assume the 9 parties’ familiarity with the underlying facts and 10 procedural history in this case. We review the agency’s 11 denial of Singh’s motion to reopen for abuse of discretion. 12 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). 13 An alien may file one motion to reopen no later than 90 14 days after the date on which the final administrative 15 decision was rendered in the proceedings sought to be 16 reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 17 § 1003.2(c)(2). Singh’s 2013 motion was untimely and number 18 barred because he filed four motions to reopen since he was 19 ordered removed in 2003. See 8 U.S.C. § 1229a(c)(7)(A), 20 (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time 21 limitation does not apply to a motion to rescind if the 22 alien demonstrates that he did not receive notice of the 23 consequences for failing to appear at his hearing, as stated 2 1 in 8 U.S.C. § 1229a(b)(5). 8 C.F.R. § 1003.23(b)(4)(ii). 2 The limitations may also be equitably tolled upon a showing 3 of ineffective assistance of counsel. See Iavorski v. INS, 4 232 F.3d 124, 135 (2d Cir. 2000). The BIA reasonably found 5 that neither exception applied here. 6 Singh first argues that his Notice to Appear 7 misrepresented the consequences of failing to appear because 8 it stated that, in his absence, an in absentia removal order 9 “may,” rather than “shall,” be entered. To the contrary, 10 the NTA was accurate. Failure to appear despite proper 11 notice “shall” result in an in absentia removal order, but 12 only if the Government establishes notice and removability. 13 8 U.S.C. § 1229a(b)(5). Singh also asserts that the Notice 14 was deficient because it failed to mention the procedures 15 for rescinding an in absentia order, as set forth in the 16 last three subsections of § 1229a(b)(5). However, the 17 statute requires notice only of the consequences of failing 18 to appear, not the procedure to reverse the resulting order. 19 See 8 U.S.C. § 1229a(a)(1)(G)(ii). Accordingly, the BIA did 20 not abuse its discretion in finding that Singh’s motion to 21 rescind was untimely. See 8 C.F.R. § 1003.23(b)(4)(ii). 22 The BIA also reasonably declined to equitably toll the 23 time limitation imposed on Singh’s motion. To establish 3 1 ineffective assistance of counsel, a movant must establish 2 that the alleged ineffective assistance occurred within the 3 scope of an existing attorney-client relationship and that 4 he exercised due diligence in pursuing his claim. See 5 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); Piranej 6 v. Mukasey, 516 F.3d 137, 144-45 (2d Cir. 2008). Contrary 7 to Singh’s contention that his former counsel represented 8 him throughout his proceedings, the BIA reasonably found 9 that their relationship encompassed only the filing of 10 Singh’s first motion to reopen and the appeal from the 11 denial of that motion. 12 Even assuming, as the BIA did, that his former counsel 13 provided ineffective assistance, the BIA reasonably found 14 that Singh should have discovered the lack of notice in 15 2003, when he was ordered removed in absentia. The 16 purported issue also became apparent in 2005, when the BIA 17 denied his second motion to reopen. Given Singh’s delay 18 between discovering his attorney’s ineffective assistance 19 and filing his motion to reopen, the BIA reasonably found 20 that he failed to exercise due diligence in pursuing his 21 claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 22 2007) (“A petitioner who waits two years or longer to take 23 steps to reopen a proceedings ha[d] failed to demonstrate 4 1 due diligence.”). The BIA therefore did not abuse its 2 discretion in declining to equitably toll the motion and 3 denying it as untimely. See Rashid, 533 F.3d at 131. 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of removal 6 that the Court previously granted in this petition is VACATED, 7 and any pending motion for a stay of removal in this petition 8 is DISMISSED as moot. Any pending request for oral argument 9 in this petition is DENIED in accordance with Federal Rule of 10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 11 34.1(b). 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 5