09-4218-ag
Singh v. Holder
                                                                                BIA
                                                                           Weisel, IJ
                                                                        A072 473 324
                   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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 18 th day of August, two thousand ten.

PRESENT:
         DENNIS JACOBS,
               Chief Judge.
         JON O. NEWMAN,
         DENNY CHIN,
              Circuit Judges.
_________________________________________

GURMEET SINGH, ALSO KNOWN AS AVATAR
SINGH,
         Petitioner,

                  v.                                               09-4218-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_________________________________________

FOR PETITIONER:                Gurmeet Singh, pro se, New York, N.Y.
FOR RESPONDENT:                Tony West, Assistant Attorney General,
                               Civil    Division;    Leslie    McKay,
                               Assistant Director; Melissa Neiman-
                             Kelting, Senior Litigation Counsel;
                             Kristofer R. McDonald, Trial Attorney,
                             Office  of   Immigration   Litigation,
                             Civil    Division,    United    States
                             Department of Justice, Washington,
                             D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

    Petitioner Gurmeet Singh, a native and citizen of India,

seeks review of the September 11, 2009, order of the BIA,

affirming the March 13, 2008, decision of Immigration Judge

(“IJ”) Robert D. Weisel, which denied his motion to reopen.

In re Gurmeet Singh, No. A072 473 324 (B.I.A. Sept. 11, 2009),

aff’g No. A072 473 324 (Immig. Ct. N.Y. City Mar. 13, 2008).

We assume the parties’ familiarity with the underlying facts

and procedural history of the case.

    When, as here, an alien files a motion that seeks both

rescission of an in absentia exclusion order, as well as

reopening of proceedings based on new evidence, we treat the

motion    as    comprising   distinct   motions   to   rescind   and   to

reopen.        Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1

(2d Cir. 2006).      We address separately each of Singh’s motions

below.


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I.    Motion to Rescind

      We    review   the   denial    of        a   motion    to    rescind    an    in

absentia exclusion order for abuse of discretion.                       See Alrefae

v. Chertoff, 471 F.3d 353, 357 (2d Cir. 2006); see also Kaur

v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).                             The

agency’s regulations provide that, although motions to rescind

in absentia orders of exclusion are not subject to time or

numerical limitations, to obtain rescission an alien must

demonstrate that he had reasonable cause for his failure to

appear.      See 8 C.F.R. § 1003.23(b)(4)(iii)(B); In re N-B-, 22

I. & N. Dec. 590, 592 (BIA 1999).

      As a threshold matter, we find meritless Singh’s argument

that his exclusion order should have been rescinded because

his departure from the United States prior to his exclusion

hearing divested the IJ of jurisdiction over his proceedings.

As   the    BIA   noted,   Singh    failed         to   establish      that   he   had

departed from the United States before his scheduled hearing

date.      Regardless, even assuming Singh could establish that he

was outside the United States at the time of his hearing, an

alien      “cannot    compel       the     termination            of    deportation

proceedings which have been commenced against him merely by

effecting a departure and reentry.”                     See Matter of Brown, 18


                                         -3-
I. & N. Dec. 324, 325 (BIA 1982); see also Ahmed v. Gonzales,

432 F.3d 709, 711 (7th Cir. 2005) (noting that upon finding

that an alien is removable and received adequate notice of a

hearing, “an immigration judge [does not have] discretion to

terminate removal proceedings because an alien has left the

country,” but must instead issue an order of removal).

    Singh additionally argues that he established “reasonable

cause” for his absence from the proceedings based on the

ineffective assistance of his former counsel.           However, as the

BIA properly found, Singh cannot show any prejudice regarding

his failure to appear at his March 1993 hearing arising from

any ineffective assistance of counsel related to the filing of

his first motion to reopen as that ineffectiveness did not

occur until after he failed to appear.            See Rabiu v. INS, 41

F.3d 879, 882 (2d Cir. 1994) (holding that an alien must

demonstrate actual prejudice to prevail on an ineffective

assistance claim).    Moreover, in light of the numerous reasons

Singh proffered for failing to attend his March 1993 exclusion

hearing, the BIA did not abuse its discretion in finding that

Singh failed to establish that his failure to appear at his

March   1993   exclusion   hearing    was   due   to   any   ineffective

assistance on the part of his prior counsel.             Thus, because



                                -4-
Singh failed to establish reasonable cause for his failure to

appear, see Matter of Haim, 19 I. & N. Dec. 641, 642 (BIA

1988), the BIA did not abuse its discretion in denying his

motion to rescind.

II.   Motion to Reopen

      The BIA similarly did not abuse its discretion in finding

that Singh’s request to adjust to permanent resident status on

the basis of an approved Immigrant Petition for Alien Worker

did not constitute grounds for reopening his case.             See Matter

of Castro-Padron, 21 I. & N. Dec. 379, 380 (BIA 1996).                As the

BIA has found, an IJ in exclusion proceedings has jurisdiction

to    adjudicate        adjustment   applications    only     in   limited

circumstances.          Because those circumstances do not pertain

here, the BIA found that Singh was not eligible for adjustment

of status in exclusion proceedings and properly denied the

motion to reopen.          See id.   To the extent Singh argues that

reopening is appropriate to allow him to pursue a request for

cancellation       of     removal,   we    decline   to     address    this

unexhausted argument.         See Lin Zhong v. U.S. Dep’t of Justice,

480 F.3d 104, 119-20 (2d Cir. 2007).

      For the foregoing reasons, the petition for review is

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



                                     -5-
that the Court previously granted in this petition is VACATED,

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

is DISMISSED as moot.   Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

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

34.1(b).

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




                             -6-
