FILED
NOT FOR PUBLICATION FEB 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJINDER PAL SINGH, No. 11-70871
Petitioner, BIA No. A071 789 054
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 13, 2015
San Francisco, California**
Before: CLIFTON and NGUYEN, Circuit Judges, and RAKOFF, Senior District
Judge.***
Petitioner Rajinder Pal Singh is a native of India and petitions for review of
an order of the Board of Immigration Appeals (BIA) denying his motion to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
reconsider a decision of the BIA that was responsive to a limited remand order of
this Court in another case involving Petitioner, Singh v. Napolitano, 619 F.3d 1101
(9th Cir. 2010), amended by 649 F.3d 899 (9th Cir. 2011). Because this petition
does not derive from a final order of removal, we dismiss for lack of jurisdiction. 8
U.S.C. § 1252; Alcala v. Holder, 563 F.3d 1009, 1013–16 (9th Cir. 2009).
In 1993, an Immigration Judge ordered Petitioner excluded and deported
from the United States. The BIA agreed with the Immigration Judge and dismissed
Petitioner’s appeal in 1999. Petitioner never filed any other motion with the BIA
and did not appeal the BIA’s 1999 decision. Petitioner did not leave the United
States and was apprehended in 2007, at which time he filed a petition for writ of
habeas corpus alleging ineffective assistance of counsel because of the alleged
failure of his former counsel to inform him of his right to appeal the BIA’s 1999
decision or otherwise preserve his right to judicial review. See Singh v. Chertoff,
No. C-07-3943 MMC, 2007 WL 3010620, at *1 (N.D. Cal. Oct. 12, 2007). The
district court denied the petition, holding that Petitioner had failed to exhaust all
administrative remedies prior to filing the writ. Id. at *2–3.
On appeal of that decision to this Court, Petitioner argued that he should not
have been required to raise his ineffective assistance of counsel claim first with the
BIA, because the BIA did not have jurisdiction to hear claims where the alleged
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ineffective assistance of counsel occurred after a final order of removal. Singh v.
Napolitano, 649 F.3d at 900. The Court remanded the case to the BIA “for the
limited purpose of ruling upon whether the Board had jurisdiction to hear Singh’s
ineffective assistance of counsel claims and what effect, if any, the Attorney
General’s recent opinion in In re Compean, 25 I & N Dec. 1, 3 (A.G. 2009), has on
this case.” Singh v. Napolitano, 577 F.3d 988, 988–99 (9th Cir. 2009). The BIA
responded to the Court’s remand order on April 30, 2010, stating that, while any
response is necessarily hypothetical since the Petitioner never filed a motion to
reopen his case, it would have had jurisdiction. It could not state definitively how it
would have ruled on Petitioner’s motion, had he filed one, though it noted that it
“did regularly reissue decisions where a lack of notice of the Board’s original
decision resulted either from administrative error at the Board or from ineffective
assistance of counsel.” Id. The Court considered the BIA’s response in its decision
affirming the district court. Singh v. Napolitano, 649 F.3d at 901–03.
Petitioner’s current appeal stems from the BIA’s 2010 response—not from
its 1999 decision on his order of removal. Before the Court issued its decision in
Singh v. Napolitano, 649 F.3d 899, Petitioner moved for the BIA to reconsider its
2010 response to the remand order. The BIA denied the motion on February 24,
2011, and this appeal followed.
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This is a court of limited jurisdiction, which may only review decisions of
the BIA under conditions specified by statute. See Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). The statute governing petitions for review of
BIA decisions limits the Court’s jurisdiction to “final order[s] of removal.” 8
U.S.C. § 1252(a)(1). As this petition does not derive from a final order of removal,
but from an advisory decision of the BIA that was responsive to a limited remand
order of this Court, the Court does not have jurisdiction. See Alcala, 563 F.3d at
1013–16.
Accordingly, the PETITION FOR REVIEW IS DISMISSED.
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