Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-6-2006
Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3452
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3452
__________
BINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
____________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
Agency No. A75 309 698
_______________________
Submitted Under Third Circuit LAR 34.1(a)
May 26, 2006
Before: RENDELL, AMBRO and ROTH1, Circuit Judges.
(Filed: June 6, 2006)
_______________
OPINION OF THE COURT
_____________
PER CURIAM
Binder Singh, a native and citizen of India, petitions for review of an order of the
1
Effective May 31, 2006, Judge Roth assumed senior status.
Board of Immigration Appeals (BIA), which denied his third motion to reopen removal
proceedings. We will deny the petition.
Soon after Singh’s arrival in the United States, he applied for asylum. However,
his attorney withdrew the application (allegedly without telling him) and waived his right
to appeal. The Immigration Judge (IJ) entered an order noting the withdrawal of the
application and granting voluntary departure on October 29, 2002. In November 2002,
Singh, proceeding pro se, filed a motion to reopen, alleging ineffective assistance of
counsel. However, he did not meet any of the requirements of Matter of Lozada, 19 I&N
Dec. 637 (BIA 1988).2 The IJ denied the motion to reopen on January 6, 2003 for failure
to establish an ineffective assistance claim.
Singh then hired another attorney who filed a brief on appeal which dealt only with
the merits of his asylum claim and did not address the ineffectiveness claim. The Board of
Immigration Appeals (BIA) affirmed without opinion on November 19, 2003. Singh then
filed a second motion to reopen with the BIA, presenting more articles in support of the
2
An alien’s constitutional right to counsel in immigration proceedings is based on the
Fifth Amendment’s guarantee of due process. See Ponce-Leiva v. Ashcroft, 331 F.3d
369, 374 (3d Cir. 2003). Before proceeding with a claim of ineffective assistance of
counsel, an alien generally must comply with the procedural requirements of Lozada. See
Lu v. Ashcroft, 259 F.3d 127, 132-33 (3d Cir. 2001). These procedural requirements
include: (1) an affidavit detailing the relevant facts; (2) a response from counsel (or a
statement of counsel’s failure or refusal to respond) to the affidavit; and (3)
documentation demonstrating that a complaint has been filed with the appropriate
disciplinary authorities. Lu, 259 F.3d at 132. The failure to file a disciplinary complaint
against counsel is not fatal if the alien provides a reasonable explanation for his decision.
Id. at 134.
2
asylum claim. The BIA denied the motion, stating that it was “not supported by evidence
that is material and could not have been discovered or presented” at his prior hearing.
Singh then filed a pro se motion to reopen, his third, claiming that his three prior
attorneys were ineffective. The BIA denied the motion on May 31, 2005, noting that
Singh’s ineffectiveness claim had already been considered and rejected, that he had
provided “little more information about his claims against the first attorney than what was
provided before the Immigration Judge in 2002,” and that he had improperly served his
motion on the Department of Homeland Security (DHS) in San Francisco, even though
his immigration hearing had taken place in New Jersey. Singh filed a timely petition for
review.3
This court’s review extends only to the BIA’s order denying Singh’s third motion
to reopen. See Stone v. INS, 514 U.S. 386, 405 (1995); Nocon v. INS, 789 F.2d 1028,
1033-34 (3d Cir. 1986). The decision to deny a motion to reopen is within the Board’s
discretion. See 8 C.F.R. § 1003.2(a); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001).
Under the regulations, the Board “has discretion to deny a motion to reopen even if the
party moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). The
standard of review of an order denying a motion to reopen is very deferential. INS v.
Doherty, 502 U.S. 314, 323 (1992) (stressing that motions to reopen immigration
proceedings are disfavored and confining review to abuse of discretion).
3
Singh erroneously filed his petition for review in the United States Court of Appeals
for the Ninth Circuit. That Court transferred the petition to this Court on July 15, 2005.
3
Singh has not shown that the BIA abused its discretion in failing to reopen
proceedings. We have stated that the Lozada requirements are “a reasonable exercise of
the Board’s discretion.” Lu, 259 F.3d at 132. The IJ cited the Lozada requirements in his
decision denying Singh’s first motion to reopen, thus putting Singh on notice of the
requirements. Yet, his third motion to reopen does not satisfy the Lozada requirements.
Singh did not include an affidavit attesting to the relevant facts, nor did he provide any
evidence that he notified his former attorneys and gave them an opportunity to respond.
Further, as the BIA noted, he served his motion on the wrong government office. We
therefore find that the BIA did not abuse its discretion in denying the motion, and we will
deny the petition for review.
4