Gurdeep Singh v. Loretta E. Lynch

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GURDEEP SINGH and BHAGWANT No. 13-71171
SINGH,
Agency Nos. A089-679-782
Petitioners, A089-689-388

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted September 3, 2015**
Seattle, Washington

Before: McKEOWN, GOULD, and N.R. SMITH, Circuit Judges.

We deny Petitioners’ petition for review of the Board of Immigration

Appeals’ (“BIA”) denial of their motion to reopen on two grounds:

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The BIA did not abuse its discretion in concluding that Petitioners failed to

present evidence showing that equitable tolling was warranted. Petitioners argue

that, because their former counsel failed to submit a brief in support of their appeal

to the BIA, they merit equitable tolling.1 However, Petitioners knew of this failure

when the BIA issued its order, because the BIA noted that counsel failed to submit

a brief. Further, Petitioners were aware that this failure was ineffective assistance

of counsel no later than October 24, 2012, when new counsel filed their notice of

appeal to this court.

Although we recognize equitable tolling in cases involving ineffective

assistance by an attorney or representative, coupled with fraudulent or erroneous

conduct, Petitioners did not present evidence of (a) why they were prevented from

timely filing or (b) how they acted with “due diligence in discovering the

deception, fraud, or error.” Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.

2003). Petitioners merely argued that they acted with due diligence and “filed

within 90 days of [their] learning of [their] former attorney’s ineffective assistance

1
Petitioners also challenged prior counsel’s failure to submit proof that they
paid bonds for voluntary departure. They concede that, because they appealed the
BIA’s decision, they are no longer eligible for voluntary departure. Thus, they
cannot establish prejudice as to this claim.
2
of counsel.” These allegations alone are not sufficient to establish equitable

tolling.2

2. In the alternative, the BIA concluded that, even if the motion were timely

filed, the information in the motion failed to establish that Petitioners were

prejudiced. Id. at 899 (“To show a deprivation of due process caused by

ineffective assistance of counsel, the alien must show that counsel’s ineffective

performance prejudiced her.”). The BIA noted “the Notice of Appeal itself

included sufficiently specific arguments to explain the basis for [Petitioners’]

appeal,” and Petitioners had “not indicated what additional arguments should have

been presented during the course of their appeal.” Further, the BIA addressed the

adverse credibility claims raised in the Notice of Appeal and which would have

been briefed by counsel. Thus, the BIA did not abuse its discretion in determining

that Petitioners suffered no prejudice.3

2
Petitioners present new arguments in their opening brief to establish their
diligence. However, these arguments were not presented to the BIA. Thus, we lack
jurisdiction, because they are unexhausted. See Alvarado v. Holder, 759 F.3d 1121,
1128 (9th Cir. 2014).
3
Petitioners argue for the first time on appeal that they may have obtained a
different outcome had their counsel made cogent arguments to give explicit
examples of their credibility (which examples are raised in each of their underlying
appeals). Because these arguments were not presented to the BIA, we lack
jurisdiction to address these unexhausted claims. See Alvarado, 759 F.3d at 1128.

3
PETITION FOR REVIEW DENIED.