         09-2763-ag
         Singh v. Holder
                                                                                       BIA
                                                                               A075 917 719
                                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 8th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                REENA RAGGI,
 9                GERARD E. LYNCH,
10                 Circuit Judges.
11       _______________________________________
12
13       PARAMJIT SINGH,
14                Petitioner,
15
16                         v.                                   09-2763-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Genet Getachew, Brooklyn, New York.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General; Leslie McKay, Assistant
27                                       Director; Jane T. Schaffner, Trial
28                                       Attorney, Office of Immigration
29                                       Litigation, Civil Division, United
30                                       States Department of Justice,
31                                       Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Petitioner Paramjit Singh, a native and citizen of

 6   India, seeks review of a June 1, 2009, decision of the BIA,

 7   denying his motion to remand and affirming the July 26,

 8   2007, decision of Immigration Judge (“IJ”) Annette S.

 9   Elstein, denying his application for asylum, withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).   In re Paramjit Singh, No. A075 917 719 (B.I.A.

12   June 1, 2009), aff’g No. A075 917 719 (Immig. Ct. N.Y. City

13   July 26, 2007).     We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

15       We previously granted in part the Government’s motion

16   for summary disposition to the extent Singh challenged the

17   denial of withholding of removal.     Because Singh does not

18   challenge either the agency’s pretermission of his untimely

19   asylum application or its denial of his CAT claim, the only

20   issue for review is Singh’s challenge to the BIA’s denial of

21   his motion to remand. See Yuequing Zhang, 426 F.3d 540, 545

22   n.7 (2d Cir. 2005).

23       We review the BIA’s denial of a motion to remand for

24   abuse of discretion.     Li Yong Cao v. U.S. Dep’t of Justice,

                                     2
 1   421 F.3d 149, 157 (2d Cir. 2005).    The BIA did not abuse its

 2   discretion in denying Singh’s motion to remand, based on his

 3   approved I-130 visa petition, because the IJ lacks

 4   jurisdiction to adjudicate his application for adjustment of

 5   status.   See Brito v. Mukasey, 521 F.3d 160, 166-68 (2d Cir.

 6   2008).

 7       Singh relies on this Court’s decision in Sheng Gao Ni

 8   v. BIA, 520 F.3d 125, 130-31 (2d Cir. 2008), to argue that

 9   when an applicant files a timely motion to reopen

10   proceedings to seek adjustment of status, it is appropriate

11   to presume that he seeks “to press [his] adjustment

12   application[] before the United States Citizenship and

13   Immigration Services” (“USCIS”) rather than the IJ, such

14   that the BIA abuses its discretion in denying such a motion

15   to reopen on jurisdictional grounds.     However, whereas the

16   Sheng Gao Ni petitioners specifically argued to the BIA that

17   they intended to pursue their adjustment application before

18   the USCIS, Singh explicitly moved for reopening so that the

19   IJ could conduct a new hearing.     See id. at 130.   As Singh

20   conceded, the IJ could not have taken any action to

21   adjudicate his adjustment of status application.      See Brito,

22   521 F.3d at 166.   Furthermore, because the BIA’s decision

23   responded to the relief Singh sought—to reopen his

24   proceedings for a new hearing before the IJ–the BIA did not

                                   3
 1   abuse its discretion in denying Singh’s motion on

 2   jurisdictional grounds.   See Ni, 520 F.3d at 130-31; see

 3   also Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93

 4   (2d Cir. 2001) (explaining that an abuse of discretion may

 5   be found where the BIA’s decision “provides no rational

 6   explanation, inexplicably departs from established policies,

 7   is devoid of any reasoning, or contains only summary or

 8   conclusory statements; that is to say, where the Board has

 9   acted in an arbitrary and capricious manner” (internal

10   citations omitted)).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any stay of

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DISMISSED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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