FILED
NOT FOR PUBLICATION NOV 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUKHINDER SINGH, AKA Sukhjinder Nos. 11-73516, 12-70214
Singh-Toor,
Agency No. A073-413-757
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Submitted October 21, 2015**
San Francisco, California
Before: BLACK***, CLIFTON and N.R. SMITH, Circuit Judges.
Sukhinder Singh, a native and citizen of India, petitions for review of the
Board of Immigration Appeals’ (BIA) orders denying his motions to reconsider
*
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).
***
The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.
and to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petitions for review.
Singh was granted asylum in 1996. In 2002, the Immigration and
Naturalization Service (INS) filed a motion to reopen Singh’s proceedings,
alleging fraud. A check of fingerprints when Singh pursued adjustment of status
revealed that he was the respondent in two cases, one filed in Texas and the other
filed in California. Singh did not let either Immigration Judge (IJ) know he had
another ongoing asylum claim, and the claims presented in each case were
inconsistent. Following the grant of asylum in one case, Singh fraudulently
advised the IJ in the other case that he had emigrated to the Philippines, causing the
INS to agree to termination without prejudice. Following an evidentiary hearing in
2004, Singh’s grant of asylum was vacated for fraud, and Singh was ordered to be
deported to India.
In 2011, Singh filed an untimely motion to reopen alleging he received
ineffective assistance of counsel in his removal proceedings. The BIA denied
Singh’s motion to reopen. Singh then filed a motion to reconsider the denial of the
motion to reopen, which the BIA also denied.
A motion to reopen proceedings must state the new facts that will be proven
at a hearing and must be supported by affidavits or other evidence. 8 C.F.R.
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§ 1003.2(c)(1). A motion to reconsider must identify an error of fact or law in the
BIA’s earlier decision and must be supported by authority. 8 C.F.R.
§ 1003.2(b)(1). We review for abuse of discretion the BIA’s denial of a motion to
reopen or to reconsider. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.
2005).
In order for the BIA to assess the merits of an alien’s ineffective assistance
of counsel claim, an alien must ordinarily meet the three requirements set forth in
Matter of Lozada, 19 I.&N. Dec. 637 (BIA 1988). Castillo-Perez v. INS, 212 F.3d
518, 525 (9th Cir. 2000). Lozada requires a petitioner seeking to reopen based on
a claim of ineffective assistance of counsel to:
1) submit an affidavit explaining his agreement with former counsel
regarding his legal representation, 2) present evidence that prior
counsel has been informed of the allegations against her and given an
opportunity to respond, [and] 3) either show that a complaint against
prior counsel was filed with the proper disciplinary authorities or
explain why no such complaint was filed.
Iturribarria v. INS, 321 F.3d 889, 900 (9th Cir. 2003). “[U]nder ordinary
circumstances the BIA does not abuse its discretion when it denies a motion to . . .
reopen based on alleged ineffective assistance of counsel where the petitioner fails
to meet the requirements of Lozada.” Castillo-Perez, 212 F.3d at 525. Where the
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facts are plain on the face of the administrative record, however, the requirements
of Lozada are not dispositive. Id.
The BIA did not abuse its discretion in denying Singh’s motions to reopen
and to reconsider as he failed to substantially comply with the Lozada
requirements. Further, Singh is not excused from substantially complying with
Lozada as the relevant facts supporting his ineffective assistance of counsel claims
are not plain from the record.
PETITIONS FOR REVIEW DENIED.
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