11-4682 BIA
Singh v. Holder A093 250 506
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 22nd day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 KARNAIL SINGH,
14 Petitioner,
15
16 v. 11-4682
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Martin R. Robles-Avila, San Francisco,
24 California.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Emily Anne Radford,
28 Assistant Director; Aric A. Anderson,
29 Trial Attorney, Office of Immigration
30 Litigation, United States Department of
31 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Karnail Singh, a native and citizen of
6 India, seeks review of the October 13, 2011, order of the
7 BIA denying his motion to reopen. In re Karnail Singh, No.
8 A093 250 506 (B.I.A. Oct. 13, 2011). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of the case.
11 We review the BIA’s denial of a motion to reopen and
12 reissue for abuse of discretion. See Kaur v. BIA, 413 F.3d
13 232, 233 (2d Cir. 2005) (per curiam); Ping Chen v. U.S.
14 Att’y Gen., 502 F.3d 73, 75 (2d Cir. 2007) (per curiam).
15 Here, the BIA did not abuse its discretion by denying
16 Singh’s motion to reopen and reissue as untimely and number-
17 barred. An alien may file one motion to reopen, generally
18 no later than 90 days after the date on which the final
19 administrative decision was rendered in the proceedings
20 sought to be reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8
21 C.F.R. § 1003.2(c)(2). There is no dispute that Singh’s
22 2011 motion was untimely and number-barred, as the final
2
1 administrative order was issued in 2003 and he had
2 previously filed two motions to reopen.
3 Singh argues that the BIA nevertheless abused its
4 discretion in denying his motion to reopen because it had
5 violated his due process rights. Specifically, he argues
6 that the BIA: (1) prevented him from petitioning for review
7 of its denial of his second motion to reopen by failing to
8 send a copy of its decision to his attorney; and
9 (2) deprived him of the benefit of counsel by failing to
10 notify him that the immigration judge (“IJ”) had certified
11 his third motion to reopen to the BIA and that his attorney
12 was required to enter her appearance before the BIA. His
13 arguments are without merit.
14 Because the BIA had retained jurisdiction over Singh’s
15 proceedings since dismissing his appeal of the IJ’s denial
16 of his first motion to reopen, see 8 C.F.R. §§ 1003.1(b),
17 1003.3(a), the IJ transferred his second motion to reopen
18 from the immigration court, where Singh had improperly filed
19 it, to the BIA for adjudication. Contrary to Singh’s
20 argument that this constituted a certification, the IJ was
21 not asking the BIA to review a decision of the immigration
22 court, as is contemplated by the certification regulations,
3
1 see 8 C.F.R. § 1003.7, but merely changed the venue to the
2 proper forum because the IJ lacked jurisdiction to review
3 the motion. Because the certification regulation did not
4 apply here, the BIA was not required to issue a Notice of
5 Certification form to Singh or his attorney.
6 Furthermore, the BIA effected proper service of its
7 order denying Singh’s second motion to reopen. Under 8
8 C.F.R. § 1003.13, service is effected by mailing a document
9 to the appropriate party or parties. The BIA mailed a
10 notice to both Singh and his then-attorney of record,
11 Theresa Salazar-Cosmos, stating that it had received Singh’s
12 motion and that his attorney had not yet filed the
13 appropriate entry of appearance form with the BIA. Because
14 no such form was filed prior to the issuance of the BIA’s
15 denial, the BIA appropriately considered Singh to be pro se.
16 As a pro se appellant, Singh was the only “appropriate
17 party,” 8 C.F.R. § 1003.13, to whom the BIA was required to
18 mail a copy of its decision, which it did in January 2011.
19 Because the BIA complied with its own regulations and
20 did not otherwise violate Singh’s due process rights, the
21 BIA did not abuse its discretion in denying Singh’s third
22 motion to reopen as untimely and number-barred. See 8
23 U.S.C. § 1229a(c)(7)(A),(C)(i); 8 C.F.R. § 1003.2(c)(2).
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5