Singh v. Lynch

14-2605 Singh v. Lynch BIA A088 186 012 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 29th day of December, two thousand fifteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 PETER W. HALL, 9 SUSAN L. CARNEY, 10 Circuit Judges. 11 _____________________________________ 12 13 KARAMJIT SINGH, 14 Petitioner, 15 16 v. 14-2605 17 NAC 18 19 LORETTA E. LYNCH, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jaspreet Singh, Jackson Heights, 25 New York. 26 27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 28 Assistant Attorney General; 29 Jennifer Williams, Senior 1 Litigation Counsel; Lindsay W. 2 Zimliki, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, D.C. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review is 10 DENIED. 11 Petitioner Karamjit Singh, a native and citizen of India, 12 seeks review of a June 27, 2014 decision of the BIA denying 13 Singh’s motion to reopen. In re Karamjit Singh, No. A088 186 14 012 (B.I.A. June 27, 2014). We assume the parties’ familiarity 15 with the underlying facts and procedural history in this case. 16 We have reviewed the BIA’s denial of Singh’s motion to 17 reopen for abuse of discretion, see Ali v. Gonzales, 448 F.3d 18 515, 517 (2d Cir. 2006) (per curiam), and the BIA’s factual 19 findings regarding country conditions under the substantial 20 evidence standard, see Jian Hui Shao v. Mukasey, 546 F.3d 138, 21 169 (2d Cir. 2008). It is undisputed that Singh’s motion to 22 reopen was untimely filed: the agency’s order of removal became 23 final in 2010 and Singh did not file his motion to reopen until 2 1 2014, well beyond the 90-day deadline. See 8 U.S.C. 2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 3 The BIA did not err in declining to equitably toll the 4 period for Singh to file his motion based on his ineffective 5 assistance of counsel claim. In order to warrant equitable 6 tolling, even assuming that prior counsel was ineffective, an 7 alien is required to demonstrate “due diligence” in pursuing 8 his claim during “both the period of time before the ineffective 9 assistance of counsel was or should have been discovered and 10 the period from that point until the motion to reopen is filed.” 11 Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); see also 12 Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006). 13 Singh failed to demonstrate due diligence. He did not take 14 any action to pursue reopening in the more than three years that 15 passed between the agency’s final order of removal and his 16 motion to reopen. See Jian Hua Wang v. BIA, 508 F.3d 710, 715-16 17 (2d Cir. 2007)(per curiam). 18 The BIA also reasonably found that Singh failed to 19 demonstrate changed conditions in India to excuse the untimely 20 filing of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii) 21 (exempting from the time limitation motions to reopen “based 3 1 on changed country conditions arising in the country of 2 nationality or the country to which removal has been ordered, 3 if such evidence is material and was not available and would 4 not have been discovered or presented at the previous 5 proceeding”). In light of the agency’s underlying adverse 6 credibility determination, the BIA reasonably declined to 7 credit Singh’s assertion that police recently had targeted and 8 harmed his family members because that assertion was supported 9 solely by evidence that depended upon Singh’s veracity: his own 10 affidavit and an affidavit purportedly from his father. See 11 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007). 12 Moreover, Singh’s general country conditions evidence in 13 support of reopening was substantially similar to the evidence 14 at his hearing—providing no indication that Sikhs are 15 persecuted on account of their party affiliation or support for 16 an independent state. Therefore, the record does not compel 17 the conclusion that conditions in India have materially changed 18 since 2008. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian 19 Hui Shao, 546 F.3d at 171. 4 1 Accordingly, the BIA did not abuse its discretion in 2 denying Singh’s motion to reopen as untimely. See 8 U.S.C. 3 § 1229a(c)(7)(C). 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of removal 6 that the Court previously granted in this petition is VACATED, 7 and any pending motion for a stay of removal in this petition 8 is DISMISSED as moot. Any pending request for oral argument 9 in this petition is DENIED in accordance with Federal Rule of 10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 11 34.1(b). 12 FOR THE COURT: 13 Catherine O=Hagan Wolfe, Clerk 5