FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 16, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DAVINDER SINGH,
Petitioner,
v. No. 16-9548
(Petition for Review)
JEFF SESSIONS,* United States Attorney
General,
Respondent.
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ORDER AND JUDGMENT**
_________________________________
Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
_________________________________
Davinder Singh, a native and citizen of India proceeding pro se, petitions for
review of an order issued by the Board of Immigration Appeals (BIA) denying his
second motion to reopen. We exercise jurisdiction under 8 U.S.C. § 1252 and deny
the petition.
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this
action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Mr. Singh entered the United States in March 2014 and was detained by the
Department of Homeland Security (DHS), which initiated removal proceedings.
Mr. Singh was released on bond, and he provided a Tennessee address as his
residence. In April 2014 he hired Genet Getachew to represent him and to file a
motion for change of venue. According to Mr. Singh, she responded to his inquiries
by stating that it was “in process” and “still pending,” but she never actually filed the
motion. R. at 20, 21. He concedes that she did inform him that since no such motion
had been granted he still needed to appear at his August 2014 hearing in Utah.
In July 2014 Mr. Singh hired Mohammed Arif, whom he never met in person,
to represent him at the hearing. At the time, Mr. Singh “believed [Mr.] Arif to be an
attorney as [Mr. Singh] was informed that [Mr.] Arif frequently visits the detention
center in Eloy, Arizona, and files cases on behalf of the detainees.” Opening Br. at 4.
Mr. Singh subsequently came to believe that Mr. Arif was not admitted to practice
law.
On the day of the hearing, Mr. Singh told Mr. Arif that he would not be able to
attend the hearing due to a back injury. For unexplained reasons, another individual
actually represented Mr. Singh at the hearing.1 The representative stated that
Mr. Singh was unable to appear due to lower-back pain. He presented a letter from
Mr. Singh’s sponsor stating that Mr. Singh’s back injury prevented him from
1
Although Mr. Singh contends that he was not able to reasonably present his
case because he was not present at the hearing, he does not allege that the
representative who appeared on his behalf provided ineffective assistance.
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traveling by bus to Utah and that he had no other way get there. The representative
also presented an address-change form providing a New York address as Mr. Singh’s
current residence and requested a continuance to file a motion for change of venue.
The immigration judge (IJ) denied the request for a continuance and entered a
removal order in absentia. Mr. Singh did not appeal that order.
Shortly after Mr. Arif informed Mr. Singh of the result of the hearing,
Mr. Singh made an additional payment to Mr. Arif with the understanding that he
would file a motion to reopen. However, Mr. Arif did not file the motion until
March 2015. Further, he filed it as a pro se motion without any supporting evidence.
The IJ denied that motion as untimely. See 8 C.F.R. § 1003.23(b)(4)(ii)
(allowing an alien to challenge an in-absentia order within 180 days if “the failure to
appear was because of exceptional circumstances”). The IJ also determined that
Mr. Singh had provided no evidence to support his assertion that his back injury
prevented him from attending the hearing, and therefore he had failed to establish
exceptional circumstances. See 8 U.S.C. § 1229a(e)(1) (“The term ‘exceptional
circumstances’ refers to exceptional circumstances (such as battery or extreme
cruelty to the alien or any child or parent of the alien, serious illness of the alien, or
serious illness or death of the spouse, child, or parent of the alien, but not including
less compelling circumstances) beyond the control of the alien.”). Mr. Singh did not
appeal the denial of that motion.
In April 2015 Mr. Singh hired new counsel. She filed a second motion to
reopen in June 2015, asserting that Ms. Getachew’s ineffective assistance prevented
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Mr. Singh from presenting his case at the hearing, that his back injury constituted an
exceptional circumstance preventing him from attending the hearing, that there are no
numerical limits on motions to reopen, that Mr. Singh did not learn about the
deficiencies of his first motion to reopen until April 2015, and that equitable tolling
was appropriate because Mr. Arif fraudulently held himself out to be an attorney.
The IJ denied the second motion to reopen on the ground that it was
number-barred. See 8 C.F.R. § 1003.23(b)(4)(ii) (allowing an alien to file only one
motion to reopen).
Mr. Singh appealed to the BIA, arguing that he was entitled to equitable tolling
due to Ms. Getachew’s ineffective assistance and Mr. Arif’s fraudulent conduct.
With respect to Ms. Getachew, he argued that he had complied with the requirements
of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), overruled, Matter of
Compean, 24 I. & N. Dec. 710 (Att’y Gen. 2009), vacated, 25 I. & N. Dec. 1
(Att’y Gen. 2009), by providing an affidavit describing his agreement with
Ms. Getachew, by informing Ms. Getachew of the allegations against her by letter
and allowing her an opportunity to respond (which she did by sending him a refund
check), and by filing a complaint with the appropriate disciplinary authority in
New York. See Infanzon v. Ashcroft, 386 F.3d 1359, 1363 (10th Cir. 2004) (finding
no entitlement to equitable tolling where petitioner failed to satisfy the Lozada
requirements). With respect to Mr. Arif, Mr. Singh argued that he was “a victim of
deceit and fraud by an individual who is involved in the unethical and illegal practice
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of law,” R. at 24, and that he had no way to file a complaint against Mr. Arif, as
Lozada would typically require, because Mr. Arif was not actually an attorney.
To support his argument for equitable tolling, Mr. Singh asserted that he did
not learn about Ms. Getachew’s failure to file a motion for change of venue until he
retained new counsel in April 2015 and that he did not learn about Mr. Arif’s deceit
until the IJ denied his first motion to reopen earlier that same month. He argued
further that he had exercised due diligence because he hired Ms. Getachew and
Mr. Arif to represent him and reasonably relied on their representations throughout
the proceedings.
The BIA concluded that the motion was number-barred, and it declined to
apply equitable tolling based on ineffective assistance. According to the BIA,
Mr. Singh failed to establish that he was prejudiced by the conduct of either
Ms. Getachew or Mr. Arif because his back injury—not ineffective assistance—was
the reason he gave for not appearing at his hearing. The BIA stated that in ruling on
Mr. Singh’s first motion to reopen, the IJ had “permissibly concluded that
[Mr. Singh’s back injury] was not shown to be a sufficient reason for missing the
hearing.” R. at 4; see 8 U.S.C. § 1229a(e)(1) (defining exceptional circumstances).
As a result, the BIA affirmed the IJ’s denial of Mr. Singh’s second motion to reopen.
Before this court Mr. Singh argues that the BIA abused its discretion when it
denied his second motion to reopen. Specifically, he argues that he was prejudiced
by the ineffective assistance he received from both Ms. Getachew and Mr. Arif: first,
when no motion for change of venue was filed before his hearing; second, when
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insufficient evidence was presented at the hearing; and third, when the first motion to
reopen was filed late and without supporting evidence. He also appears to argue that
the BIA erred by relying on the IJ’s determination, when it denied his first motion to
reopen, that he failed to establish that his back injury was an exceptional
circumstance justifying his failure to appear at the hearing.
II. Analysis
We review for abuse of discretion a BIA order denying a motion to reopen.
Galvez Piñeda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Id. (internal quotation marks omitted). But the BIA does
not abuse its discretion when “its rationale is clear, there is no departure from
established policies, and its statements are a correct interpretation of the law.”
Infanzon, 386 F.3d at 1362. We construe Mr. Singh’s pro se pleadings liberally, see
Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013), but we will not supply
additional factual allegations or construct legal theories on his behalf, see Smith v.
United States, 561 F.3d 1090, 1096 (10th Cir. 2009).
Generally, an alien may file only one motion to reopen. See 8 C.F.R.
§ 1003.23(b)(4)(ii). It is beyond dispute that in the absence of equitable tolling
Mr. Singh’s second motion to reopen was number-barred. Although Tenth Circuit
precedent establishes that the time limitation on motions to reopen may be equitably
tolled on the basis of ineffective assistance of counsel, see Riley v. INS, 310 F.3d
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1253, 1258 (10th Cir. 2002), whether the number limitation may also be equitably
tolled remains an open question. We need not resolve this issue today because we
discern no abuse of the BIA’s discretion in declining to apply equitable tolling.
When an alien files a motion to reopen, “[t]he BIA must examine [his]
situation to determine whether his particular case warrants equitable tolling.” Id. An
alien subject to removal “state[s] a Fifth Amendment violation if he proves that
retained counsel was ineffective and, as a result, [he] was denied a fundamentally fair
proceeding.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002). “Ineffective
assistance of counsel in a deportation proceeding is a denial of due process only if the
proceeding was so fundamentally unfair that the alien was prevented from reasonably
presenting his case.” Lozada, 19 I. & N. Dec. at 638. “But, in order to prevail on an
ineffective assistance of counsel claim, the petitioner must show he was prejudiced
by his attorney’s performance.” Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1312
(10th Cir. 2015).
Mr. Singh failed to demonstrate that he was prejudiced by the allegedly
ineffective assistance he received. Even if Ms. Getachew had filed a motion for
change of venue, “the mere submission of a motion for change of venue does not
excuse an alien’s failure to appear.” Tang v. Ashcroft, 354 F.3d 1192, 1195
(10th Cir. 2003) (internal quotation marks omitted). Mr. Singh did not show what
evidence he would have presented in the motion for change of venue or at the
hearing, had he been present. Nor has he presented any evidence he would have
included with his first motion to reopen that would have created a reasonable
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likelihood that the outcome would have been different. See United States v.
Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (adopting the “reasonable
likelihood” standard for demonstrating prejudice sufficient to render a deportation
proceeding fundamentally unfair). His contention that Mr. Arif should have
submitted a doctor’s note and other evidence Mr. Singh acquired after the IJ denied
his first motion to reopen is without merit. Under these circumstances, the BIA did
not abuse its discretion by declining to apply equitable tolling.
To the extent Mr. Singh seeks to challenge the IJ’s determination that his back
injury did not constitute an exceptional circumstance, he failed to appeal this issue to
the BIA after either his hearing or the denial of his first motion to reopen; therefore,
he did not exhaust his administrative remedies, and we lack jurisdiction to consider
the matter. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991)
(“Judicial review does not extend to points the alien could have made before the
Board but did not.”).
III. Conclusion
The petition for review is denied.
Entered for the Court
Monroe G. McKay
Circuit Judge
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