13-4754
Singh v. Holder
BIA
A073 133 577
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 15th day of December, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GURDEV SINGH,
14 Petitioner,
15
16 v. 13-4754
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Dalbir Singh, Esq., New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Emily Anne Radford,
29 Assistant Director; Nehal H. Kamani,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, D.C.
34
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 Gurdev Singh, a native and citizen of India,
6 seeks review of the November 21, 2013, order of the BIA
7 denying his second motion to rescind a 1994 exclusion order
8 entered in absentia. In re Gurdev Singh, No. A073 133 577
9 (B.I.A. Nov. 21, 2013). We assume the parties’ familiarity
10 with the underlying facts and procedural history of the
11 case.
12 We review the agency’s denial of a motion to reopen
13 exclusion proceedings for abuse of discretion. Twum v. INS,
14 411 F.3d 54, 58 (2d Cir. 2005); Ke Zhen Zhao v. U.S. Dep't
15 of Justice, 265 F.3d 83, 93 (2d Cir. 2001). The immigration
16 judge ordered Singh excluded in absentia in 1994 after he
17 failed to appear for a hearing. Orders entered in absentia
18 may be rescinded only upon a showing of “reasonable cause”
19 for the failure to appear. 8 C.F.R. §
20 1003.23(b)(4)(iii)(B); Twum, 411 F.3d at 58; see also In re
21 N-B-, 22 I. & N. Dec. 590, 592-93 (B.I.A. 1999). Both lack
22 of notice and ineffective assistance of counsel may
2
1 constitute “reasonable cause” for failing to appear at a
2 hearing. See in re Mancera, 22 I. & N. Dec. 79, 82 (B.I.A.
3 1999) (lack of notice justified alien’s failure to appear at
4 a scheduled deportation hearing); Aris v. Mukasey, 517 F.3d
5 595, 599 (2d Cir. 2008) (a lawyer’s inaccurate advice to his
6 client concerning an immigration hearing date can constitute
7 “exceptional circumstances” excusing the alien’s failure to
8 appear).
9 The BIA did not abuse its discretion in denying
10 Singh’s motion. Singh was given notice of his July 1, 1994
11 hearing when an immigration officer served him with written
12 notice and read the notice to him in English while his uncle
13 translated it into Punjabi. The notice included the date,
14 time, and place of the hearing and was sufficient to put him
15 on notice of that hearing. See Lopes v. Gonzales, 468 F.3d
16 81, 84-85 (2d Cir. 2006) (notice was not defective where the
17 agency failed to provide it in the alien’s native language).
18 Singh does not dispute that he was given this notice, but
19 nevertheless insists that he did not know that he had a
20 hearing. He points to his young age at the time (14) and
21 his lack of English as causes of his confusion. However,
22 the notice was translated into his native language, and his
3
1 uncle was present at the time of service to clear up any
2 misunderstandings. Moreover, Singh was living with his
3 uncle at the time of his hearing, and he does not argue that
4 his uncle was unaware of his hearing or its consequences.
5 Nor did the BIA abuse its discretion in declining to
6 rescind based on ineffective assistance of counsel. Singh
7 failed to substantially comply with the procedural
8 requirements for bringing an ineffective assistance claim.
9 The requirements include submitting (1) an affidavit
10 describing in detail the agreement with counsel, (2) proof
11 that counsel was informed of the allegations and had an
12 opportunity to respond, and (3) a statement regarding
13 whether a complaint was filed with the appropriate
14 disciplinary authorities, and, if not, why not. In re
15 Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988); Jian Yun
16 Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.
17 2005)(holding that an “alien who has failed to comply
18 substantially with the Lozada requirements . . . forfeits
19 her ineffective assistance of counsel claim.”). Here, while
20 Singh did submit the required affidavit of agreement, he did
21 not submit any proof that he informed counsel of the
22 allegations, except to say that he sent prior counsel a
4
1 letter. Accordingly, the BIA did not err in finding that
2 Singh failed to comply substantially with the Lozada
3 requirements.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
5