Singh v. Gonzales

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HARDEEP SINGH, 
Petitioner-Appellant, No. 05-55933
v.
 D.C. No.
CV-04-05890-DSF
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding

Argued and Submitted
February 14, 2007—San Francisco, California

Filed June 25, 2007

Before: J. Clifford Wallace, Dorothy W. Nelson, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge D.W. Nelson;
Concurrence by Judge Wallace

7589
7592 SINGH v. GONZALES

COUNSEL

Esperanza V. Bada, Law Offices of Esperanza V. Bada, La
Puente, California, for the petitioner.
 SINGH v. GONZALES 7593
Gene C. Arai, Law Offices of Esperanza V. Bada, La Puente,
California, for the petitioner.

Debra Wong Yang, United States Attorney, Los Angeles, Cal-
ifornia, for the respondent.

Leon M. Weidman, Chief Assistant United States Attorney,
Los Angeles, California, for the respondent.

Gwendolyn M. Gamble, Assistant United States Attorney,
Los Angeles, California, for the respondent.

OPINION

D. W. NELSON, Senior Circuit Judge:

Hardeep Singh (“Singh”), a native and citizen of India,
petitions for review the district court’s denial of his petition
for writ of habeas corpus. We deny the petition for review
because the motion to reopen was untimely and Singh was not
entitled to equitable tolling because of his lack of due dili-
gence.

I. FACTUAL AND PROCEDURAL BACKGROUND

Singh entered the United States on or about March 13,
1998 as an inadmissible alien without a valid visa. The Immi-
gration and Naturalization Service (INS) charged Singh with
being removable under 8 U.S.C. § 1227(a)(1)(A) as an alien
who lacked a valid entry document. On June 15, 1998, Singh
filed an application for asylum and withholding of removal,
alleging past persecution on account of his Sikh religion and
unfounded suspicions by the Indian police that he was con-
nected with a known terrorist, Rham Singh (“Rham”).

At his merits hearing on November 20, 1998, Singh was
represented by Viney Gupta (“Gupta”), who claimed that he
7594 SINGH v. GONZALES
“came on this case” a week prior to the hearing. Gupta
requested a continuance to obtain supporting documents for
the asylum application. The Immigration Judge (“IJ”) admon-
ished Gupta for being unprepared for the hearing, but never-
theless granted the continuance to April 16, 1999. At the April
hearing, Gupta submitted supporting documents with incom-
plete translations that lacked authentication. The IJ refused to
admit the documents. After the testimony of Singh and his
cousin Gursharan Kaur, the IJ continued the hearing to July
15, 1999 for translation and authentication of the documents
submitted to support the asylum application. At the July hear-
ing, Gupta again failed to produce authenticated documents.
The IJ denied Singh’s application for asylum and withholding
of removal concluding that Singh was not credible and that he
had failed to show past persecution.

On March 28, 2003, the BIA affirmed the IJ’s decision
without opinion. Gupta told Singh that his appeal had been
denied and that “he was going to file an appeal of the denial.”
On April 9, 2003, Singh, through his former counsel Gupta,
filed a petition for review and a motion to stay with this
Court, in which he contended that the BIA overlooked “the
fact that petitioner is not deportable under new relief through
his attached receipt for labor certification application as an
interstate truck driver which was timely filed while INA
245(i) was in effect.”

On September 30, 2003, Singh consulted with new counsel
for the purpose of filing a motion to reopen on the basis of
ineffective assistance of counsel. On November 17, 2003,
Singh filed a motion to reopen through his current counsel.1
In an affidavit submitted with his motion to reopen, Singh
stated:
1
Although Singh was now represented by new counsel (Singh’s current
counsel), no notice of change of counsel of record was filed with this
court.
 SINGH v. GONZALES 7595
A few weeks [after the BIA’s decision], I talked to
my relatives and they told me that I should get
another attorney because they think that Mr. Gupta
was not doing his job. I consulted with my present
lawyer on September 30, 2003 and she agreed to
take over my case.

On April 20, 2004, this Court dismissed the petition for
review filed by his former counsel for failure to file an open-
ing brief, which was due on November 17, 2003.

On May 18, 2004, the BIA denied the motion to reopen
because it was filed more than 90 days after the BIA decision
of March 28, 2003. The BIA determined:

We acknowledge that the Ninth Circuit Court of
Appeals has applied the principles of equitable toll-
ing to excuse the lateness of filings . . . . However,
an individual seeking to rely upon ‘equitable tolling’
of a filing deadline must show that he has acted with
due diligence. See Iturribarria v. INS, 321 F.3d 889,
899 (9th Cir. 2003). The respondent states that he
discovered prior counsel had provided ineffective
assistance ‘a few weeks’ after our March 28, 2003,
decision . . . . However, he did not consult current
counsel for months, until September 30, 2003. . . .
Such delay does not evidence due diligence.

The BIA thus denied Singh’s motion to reopen because he did
not exercise due diligence after becoming suspicious of his
lawyer’s fraud.

On July 20, 2004, Singh filed a petition for writ of habeas
corpus in the United States District Court for the Central Dis-
trict of California, challenging on due process grounds, the
denial of his motion to reopen. On April 18, 2005, the district
court held that it lacked jurisdiction to consider the habeas
petition because Singh had not exhausted the available judi-
7596 SINGH v. GONZALES
cial remedies. In particular, the court found that Singh had not
filed a petition for review of the BIA’s denial of his motion
to reopen with this Court.

On June 17, 2005, Singh appealed from the district court’s
denial of the habeas petition, claiming: (1) the filing of the
motion to reopen beyond the 90-day period was excusable
under the equitable tolling doctrine; and (2) he was denied
due process because of Gupta’s ineffective assistance.

II. JURISDICTION

This case presents the issue of the scope of our jurisdiction
under the REAL ID Act, Pub. L. No. 109-13, § 106(a), 109
Stat. 231 (2005) (RIDA). The issue is whether we can con-
sider Singh’s appeal of the district court’s denial of his habeas
petition filed after the enactment of the REAL ID Act as a
timely petition for review. We conclude that we can.

[1] Congress determined that habeas petitions filed under
28 U.S.C. § 2241 challenging final orders of removal that
were pending in the district court at the time of enactment
were to be transferred to the court of appeals and converted
into timely petitions for review. Pub. L. 109-13, § 106(c), 119
Stat. 231, 311. In addition, while the Act did not address this
particular issue, we have held that appeals from denials of
habeas petitions pending upon enactment of the REAL ID Act
will in most cases be treated as timely petitions for review.
See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 n.3
(9th Cir. 2005).

[2] We have not addressed how to treat appeals of habeas
petitions filed after enactment of the Act but within the sixty-
day limitations period for filing the appeal under Federal
Rules of Appellate Procedure 4(a)(1)(B). On April 18, 2005,
the district court denied Singh’s habeas petition for failure to
exhaust judicial remedies. At the time of the denial of his
habeas petition, Singh had sixty days to appeal. He filed a
 SINGH v. GONZALES 7597
notice of appeal of the habeas petition on June 17, 2005,
within this sixty-day period. In the period between the district
court’s denial of Singh’s habeas petition and his filing of an
appeal, Congress enacted the REAL ID Act on May 11, 2005.
The transfer provision in RIDA states:

TRANSFER OF CASES — If an alien’s case,
brought under section 2241 of title 28, United States
Code, and challenging a final administrative order of
removal, deportation, or exclusion, is pending in a
district court on the date of the enactment of this
division, then the district court shall transfer the case
(or the part of the case that challenges the order of
removal, deportation, or exclusion) to the court of
appeals for the circuit in which a petition for review
could have been properly filed under section
242(b)(2) of the Immigration and Nationality Act (8
U.S.C. 1252), as amended by this section, or under
section 309(c)(4)(D) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1101 note). The court of appeals shall treat
the transferred case as if it had been filed pursuant
to a petition for review under section 242, except
that subsection (b)(1) of such section shall not apply.

Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005)
(emphasis added). The first question is whether Singh’s
habeas petition was “pending” in the district court on the date
of the enactment of RIDA. RIDA does not define what it
means for a case to be “pending” in the district court. The
Supreme Court has interpreted “pending” for purposes of the
federal Antiterrorism and Effective Death Penalty Act of 1996
to “cover the time between a lower state court’s decision and
the filing of a notice of appeal to a higher state court.” Carey
v. Saffold, 536 U.S. 214, 217 (2002). This interpretation is
supported by the principle that it is upon the filing of a notice
of appeal that “jurisdiction over the matter being appealed
normally transfers from the district court to the appeals
7598 SINGH v. GONZALES
court.” Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir.
2001); see also Griggs v. Provident Consumer Discount Co.,
459 U.S. 56, 58 (1982) (per curiam) (“The filing of a notice
of appeal . . . confers jurisdiction on the court of appeals and
divests the district court of its control over those aspects of
the case involved in the appeal.”).

[3] We hold that a habeas petition is “pending” in the dis-
trict court within the meaning of RIDA’s transfer provision
when the notice of appeal was not filed at the time RIDA was
enacted, but was filed within the sixty day limitations period
for filing a timely appeal of a habeas petition under Federal
Rules of Appellate Procedure 4(a)(1)(B).

[4] This, however, does not end the jurisdictional inquiry.
We must also address Singh’s claim that he was entitled to
equitable tolling because ineffective assistance of counsel
falls within the scope of the RIDA’s transfer provision. Under
RIDA’s transfer provision, only cases that “challeng[e] a final
administrative order of removal” may be transferred to this
Court. As Singh stated in his motion to reopen, the basis of
his motion was the ineffective assistance of counsel that
occurred during the administrative proceedings. It is thus
clear that Singh’s motion to reopen is a challenge to the final
order of removal. Accordingly, Singh’s habeas petition falls
within the scope of RIDA’s transfer provision, and we con-
strue the habeas petition as a timely filed petition for review.
See Alvarez-Barajas, 418 F.3d at 1053. This changes the deci-
sion we review, and we now review the BIA’s decision, not
the district court order. Id.

[5] In Fernandez v. Gonzales, we explained that this Court
lacks jurisdiction over the BIA’s “denial of a motion to
reopen that pertains only to the merits basis for a previously-
made discretionary determination under [8 U.S.C.
§ 1252(a)(2)(B)(i)].” 439 F.3d 592, 603 (9th Cir. 2006). Here,
we have jurisdiction over the BIA’s denial of Singh’s motion
to reopen because the proceedings below did not involve any
 SINGH v. GONZALES 7599
of the enumerated provisions in § 1252(a)(2)(B)(I). See Ray
v. Gonzales, 439 F.3d 582, 588-90 (9th Cir. 2006) (exercising
jurisdiction and finding that the petitioner was entitled to
equitable tolling of the deadlines and numerical restrictions
for the motion to reopen because he acted with appropriate
diligence in discovering the deficient representation); Iturri-
barria v. INS, 321 F.3d 889, 897-99 (9th Cir. 2003) (exercis-
ing jurisdiction over a claim of entitlement to equitable tolling
and the particular issue of due diligence).

[6] We therefore conclude that we have jurisdiction over
Singh’s habeas petition because it was a challenge to an order
of removal “pending” in the district court at the time of enact-
ment of the REAL ID Act and therefore falls within the scope
of RIDA’s transfer provision.

III. STANDARD OF REVIEW

We review the BIA’s ruling on a motion to reopen for
abuse of discretion. Nath v. Gonzales, 467 F.3d 1185, 1187
(9th Cir. 2006). We review purely legal questions, such as due
process claims, de novo. Iturribarria v. INS, 321 F.3d 889,
894 (9th Cir. 2003).

IV. DISCUSSION

[7] Singh contends that the BIA erred in denying his
motion to reopen for untimeliness. In general, a motion to
reopen must be filed “within 90 days of the date of entry of
a final administrative order of removal.” 8 U.S.C.
§ 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). However, equi-
table tolling of the time limit for a motion to reopen is avail-
able “when a petitioner is prevented from filing because of
deception, fraud, or error, as long as the petitioner acts with
due diligence in discovering the deception, fraud, or error.”
Iturribarria, 321 F.3d at 897. In our en banc decision in
Socop-Gonzales v. INS, we held that equitable tolling applies
where “despite all due diligence, the party invoking equitable
7600 SINGH v. GONZALES
tolling is unable to obtain vital information bearing on the
existence of the claim.” 272 F.3d 1176, 1193 (9th Cir. 2001);
see also Albillo-DeLeon v. Gonzales, 410 F.3d 1090, 1099-
1100 (9th Cir. 2005). “The party’s ignorance of the necessary
information must have been caused by circumstances beyond
the party’s control.” Valeriano v. Gonzales, 474 F.3d 669, 673
(9th Cir. 2007) (quotation marks and citation omitted).

In this case, the final order of removal was entered on
March 28, 2003, but the motion to reopen was not filed until
November 17, 2003. Thus, the motion to reopen was filed
after the 90-day limitations period. Singh contends that he is
entitled to equitable tolling because of his former counsel’s
ineffective assistance.

[8] We have held that the limitations period is tolled until
the petitioner “definitively learns” of counsel’s fraud. Albillo-
DeLeon, 410 F.3d at 1100. Singh admits that he became
suspicious of the possibility that Gupta was providing ineffec-
tive assistance of counsel when he spoke with his relatives a
few weeks after the entry of the final order of removal. The
government contends that he had ninety days from this point
to file a motion to reopen and as a result of his failure to do
so, his motion was untimely.

[9] This is not what the BIA decided and we decline to
adopt the government’s position. The BIA did not deny
Singh’s motion to reopen on the basis that the filing deadline
was equitably tolled only up to the time that Singh spoke with
his relatives. Rather, the BIA declined to grant Singh’s
motion to reopen because he failed to exercise due diligence
after he spoke with his relatives and became suspicious of his
lawyer’s fraud. Singh’s suspicion of the deficient representa-
tion does not constitute definitive knowledge of the alleged
fraud. He became suspicious when family members told him
that he should get another attorney because they thought he
was not doing his job. These statements from family members
lack the “vital information bearing on the existence of a
 SINGH v. GONZALES 7601
claim” of ineffective assistance of counsel. Id. (concluding
that the point at which Albillo-DeLeon became concerned
with his attorney’s performance was not the same as the point
at which he definitively learned of his attorney’s fraud). It
was not until Singh consulted with his present counsel on
September 30, 2003 that he presumably obtained the vital
information bearing on the existence of the ineffective assis-
tance of counsel claim. Thus, if Singh acted with due dili-
gence in definitively learning of the fraud, then he should be
entitled to equitable tolling.

[10] The more difficult question is whether Singh acted
with due diligence to definitively learn of the fraud after he
became suspicious of the fraud. As discussed above, he
became suspicious of the fraud a “few weeks” after the March
28, 2003 BIA ruling, but there is no evidence in the record of
any actions taken by Singh until September 30, 2003, when
he consulted with his present counsel. This inaction contrasts
sharply with cases in which we have concluded that the peti-
tioner acted with due diligence. See id. at 1094 (the petitioner
filed a Freedom of Information Act request for his case file
immediately after becoming concerned about his counsel’s
performance); Iturribarria, 321 F.3d at 899 (“Less than one
month elapsed from the denial of the appeal to the date [the
petitioner] learned of [his counsel’s] allegedly fraudulent and
ineffective activities.”); Rodriguez-Lariz, 282 F.3d 1218,
1225 (9th Cir. 2002) (noting that petitioners promptly retained
counsel “[o]nce they received notification that their initial
motion for reconsideration . . . had been denied”).

Singh contends that he should be excused from not obtain-
ing new counsel more promptly because “[h]e is not a sophis-
ticated man,” and “[h]e had been in this country barely five
years and is so ignorant of the ways of life and his rights
under U.S. laws.” Although this is a sympathetic situation, it
is one in which most immigrants find themselves and we have
never held that it excuses a lack of due diligence in defini-
tively learning of the fraud after becoming suspicious of it.
7602 SINGH v. GONZALES
V. CONCLUSION

[11] We deny the petition for review because the BIA did
not abuse its discretion in finding that the motion to reopen
was untimely and the petitioner was not entitled to equitable
tolling of the filing deadline.

PETITION DENIED

WALLACE, Circuit Judge, concurring:

I agree with the majority’s jurisdictional determination, but
write separately concerning the issue of equitable tolling. In
denying Singh’s motion to reopen, the Board relied on
Singh’s statement in his brief that he discovered Gupta’s inef-
fective assistance of counsel a few weeks after the Board’s
March 2003 ruling. In my view, this is a finding by the Board
on the discovery issue. Singh does not challenge this finding
in his petition for review. Because he failed to make a timely
effort to remedy the ineffective assistance after he discovered
it, Singh’s petition for review must be denied.

The majority takes a different approach, which I question.
They state that Singh “admits that he became suspicious of
the possibility that Gupta was providing ineffective assistance
of counsel when he spoke with his relatives,” but that Singh
did not “definitively learn” of the ineffective assistance until
he retained new counsel in September 2003. Singh’s affidavit
attached to his brief in support of his motion to reopen does
not indicate that he shared his relatives’ misgivings about
Gupta’s performance at the time. The majority must, then,
rely on Singh’s brief in support of his motion to reopen or his
brief on appeal to this court. Both, however, go well beyond
suspicion. They stipulate to actual “discovery” of the ineffec-
tive assistance a few weeks after the March 2003 ruling. The
 SINGH v. GONZALES 7603
majority’s statements concerning the discovery issue are
unsupported.

In any event, the majority must review the facts as found
by the Board. See Fedunyak v. Gonzales, 477 F.3d 1126, 1127
(9th Cir. 2007) (reviewing the Board’s findings for “substan-
tial evidence”). The Board’s reliance on Singh’s statement in
his brief in support of the motion to reopen meets the test.
Accordingly, even if Singh “act[ed] with due diligence in dis-
covering” the ineffective assistance, he does not qualify for
equitable relief because he did not raise the issue before the
Board within 90 days of the discovery. See Iturribarria v.
I.N.S., 321 F.3d 889, 897 (9th Cir. 2003).