         11-3427
         Singh v. Holder

                                                                                           BIA
                                                                                   A075 246 640
                                                                                   A075 260 832
                                                                                   A075 260 833
                                                                                   A075 260 834

                                 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 New
 4       York, on the 17th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                         RALPH K. WINTER,
 8                         JOSÉ A. CABRANES,
 9                         DENNY CHIN,
10                              Circuit Judges.
11
12
13       CHARAN SINGH, AKA GURCHARAN MULTANI,
14       et al.,
15                Petitioners,
16
17                          v.                                  11-3427
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22
23
24       FOR PETITIONERS:                Charan Singh, pro se.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; Thomas B. Fatouros,
28                                       Senior Litigation Counsel; James A.
29                                       Hurley, 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 is

4    DENIED.

5        Petitioners Charan Singh, Joginder Kaur, Bikramjit Singh

6    and Gurjaspreet Singh, natives and citizens of India, seek

7    review of an August 3, 2011, decision of the BIA denying their

8    motion to reopen their immigration proceedings.     In re Charan

9    Singh, Joginder Kaur, Bikramjit Singh and Gurjaspreet Singh,

10   Nos. A075 246 640, A075 260 832/833/834 (B.I.A. Aug. 3, 2011).

11   We assume the parties’ familiarity with the underlying facts

12   and procedural history of the case.

13       We review the BIA’s denial of a motion to reopen for

14   abuse of discretion, mindful of the Supreme Court’s admonition

15   that such motions are “disfavored.”   Ali v. Gonzales, 448 F.3d

16   515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,

17   322-23 (1992)).   Generally, a motion to reopen must be filed

18   within 90 days of the final administrative order.     See 8

19   U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    The

20   90-day time period may be equitably tolled when the motion is

21   based on a claim of ineffective assistance of counsel.        See

22   Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d Cir. 2008); Jin Bo


                                    2
1    Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006).   In order to

2    warrant equitable tolling on the basis of ineffective

3    assistance of counsel, an alien claiming ineffective

4    assistance “must show prejudice resulting from counsel’s

5    alleged deficiencies.”   Debeatham v. Holder, 602 F.3d 481, 485

6    (2d Cir. 2010); see also Vartelas v. Holder, 620 F.3d 108, 113

7    (2d Cir. 2010) (“Whatever the provenance of the right [to

8    counsel in immigration proceedings], an ineffective-assistance

9    claim cannot be established without some showing of

10   prejudice.”).

11       In this case, because the Petitioners failed to show that

12   they were prejudiced by their attorney’s allegedly deficient

13   performance, the BIA did not abuse its discretion in denying

14   their motion to reopen as untimely.   Petitioners fail to

15   explain how the letter from the Global Human Rights Commission

16   (“GHRC”) would have rehabilitated the numerous inconsistencies

17   relied on by the agency in finding them not credible.     This is

18   particularly damaging to the Petitioners’ claim because, in

19   its decision dismissing their appeal and denying their first

20   motion to reopen their immigration proceedings, the BIA

21   concluded that the letter from the GHRC was not sufficient to

22   overcome the Petitioners’ credibility issues that served as


                                    3
1    the basis for the adverse credibility determination.

2        Petitioners also failed to demonstrate how they were

3    prejudiced by their counsel’s concession of their

4    removability.   They do not dispute that Singh’s asylum status

5    was terminated, which resulted in the termination of the

6    asylum status of the remaining petitioners, because that

7    status was derivative of Singh’s.   See 8 C.F.R § 208.24(d)

8    (“The termination of asylum status for the person who was the

9    principal applicant shall result in termination of the asylum

10   status of a spouse or child whose status was based on the

11   asylum application of the principal.”).   Nor do they point to

12   any basis in the record upon which they could assert that they

13   had legal status in the United States at the time that their

14   attorney conceded their removability.   Accordingly,

15   Petitioners were not prejudiced by this concession.

16       Finally, nothing in the record suggests that Petitioners

17   were prejudiced by their attorney’s failure to seek to

18   consolidate review of their removal proceedings with review of

19   the Special Agricultural Worker application filed by Singh

20   under a false name.   Petitioners fail to articulate precisely

21   what benefit they were denied, or how review of that denial by

22   the BIA would have benefitted them, or otherwise precluded


                                    4
1    their removal from the United States.   Accordingly, they

2    failed to demonstrate prejudice on this issue as well.

3    Because the Petitioners failed to demonstrate the prejudice

4    required for equitable tolling, the BIA did not abuse its

5    discretion by denying their motion to reopen as untimely.     See

6    8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2); Debeatham,

7    602 F.3d at 485.

8        For the foregoing reasons, the petition for review is

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

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot. Any pending request for oral argument in

13   this petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk




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