     19-686
     Singh v. Barr
                                                                                  BIA
                                                                          A073 531 048


                          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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 10th day of April, two thousand twenty.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   HAMINDER SINGH,
14            Petitioner,
15
16                   v.                                          No. 19-686
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:             Gary J. Yerman, Esq., New York, NY.
24
25   FOR RESPONDENT:             Joseph H. Hunt, Assistant Attorney
26                               General; Cindy S. Ferrier, Assistant
27                               Director; Surell Brady, Trial Attorney,
28                               Office of Immigration Litigation,
29                               United States Department of Justice,
30                               Washington, DC.
 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 Haminder Singh, a native and citizen of India,

6    seeks review of a 2019 decision of the BIA denying Singh's

 7   motion to reconsider and reopen. In re Haminder Singh, No. A

 8   073 531 048 (B.I.A. Feb. 28, 2019). We assume the parties’

 9   familiarity with the underlying facts and procedural history.

10       The current petition is timely only as to the BIA’s 2019

11   decision denying reconsideration and reopening; our review is

12   thus limited to that decision. See Ke Zhen Zhao v. U.S. Dep’t

13   of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001) (explaining

14   that separate petitions for review must be timely filed from

15   the final order of removal and any subsequent denial of

16   reopening). Further, Singh has waived any challenge to the

17   BIA’s denial of reconsideration by not addressing the BIA’s

18   determination that he did not show a legal or factual error

19   in its May 2018 decision. See Yueqing Zhang v. Gonzales, 426

20   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons

21   issues and claims not raised in his brief). Accordingly, the

22   only decision on review before us now is the BIA’s 2019 denial

                                   2
 1   of reopening.

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

 3   abuse of discretion, mindful that motions to reopen are

 4   disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

 5   (internal quotation marks omitted). When the BIA considers

 6   evidence of country conditions in evaluating a motion to

 7   reopen,    we    review   the    BIA’s      factual   findings    under    the

 8   substantial evidence standard. Jian Hui Shao v. Mukasey, 546

 9   F.3d 138, 169 (2d Cir. 2008).

10          An alien ordinarily must move to reopen no later than 90

11   days    after    entry    of    the    final   administrative      decision.

12   See 8 C.F.R. § 1003.2(c)(2). But this time limitation does

13   not apply if the motion is filed to apply for asylum “based

14   on     changed    circumstances         arising   in    the      country    of

15   nationality or in the country to which deportation has been

16   ordered, if such evidence is material and was not available

17   and could not have been discovered or presented at the

18   previous    hearing.”      Id.        § 1003.2(c)(3).    “In     determining

19   whether evidence accompanying a motion to reopen demonstrates

20   a material change in country conditions that would justify

21   reopening, [the agency] compare[s] the evidence of country

22   conditions submitted with the motion to those that existed at

                                             3
 1   the time of the merits hearing below.” In re S-Y-G-, 24 I. &

 2   N. Dec. 247, 253 (BIA 2007). We concluded that the BIA did

 3   not abuse its discretion in denying reopening because, as

 4   discussed below, Singh’s evidence did not establish a change

 5   in conditions or that any change was material to his asylum

 6   claim.

 7         Substantial evidence supports the BIA’s conclusion that

 8   the   evidence    was   insufficient   to   establish   a   change   in

 9   conditions       occurring    since     Singh’s    1996      hearing.

10   See 8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N.

11   Dec. at 253. The documents Singh submitted with his motion do

12   not discuss country conditions in India and do not establish

13   a change in the relevant period. In re S-Y-G-, 24 I. & N.

14   Dec. at 253. Singh’s motion argued that conditions have

15   worsened, citing in support of his argument a Human Rights

16   Watch report and an online article            stating   that a Sikh

17   activist from Scotland had been arrested upon his return to

18   India. But the quoted portion of the Human Rights Watch report

19   does not provide specific information about Sikhs, and Singh

20   did not provide information about the reliability of the

21   source on which the online article relied.

22         Singh asks this Court to take judicial notice of a U.S.

                                       4
 1   Commission on International Religious Freedom Report, but we

 2   are limited to “the administrative record on which the order

 3   of removal is based.” 8 U.S.C. § 1252(b)(4)(A). Further, the

 4   BIA was not required to consider the country conditions

 5   evidence   submitted   with   Singh’s   prior   motion   to   reopen,

 6   because it had previously considered this evidence when it

 7   denied reopening in May 2018. As noted, that decision is not

 8   before this Court. See Ke Zhen Zhao, 265 F.3d at 89–90.

9    Accordingly, the BIA did not err in finding no material

10   change.

11       Nor did the BIA abuse its discretion in denying Singh’s

12   motion to reopen based on his failure to overcome the IJ’s

13   underlying adverse credibility determination with regard to

14   Singh. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005)

15   (finding no abuse of discretion in BIA’s denial of motion to

16   reopen when it “clearly explained that the evidence submitted

17   by petitioner in support of her motion was not ‘material’

18   because it did not rebut the adverse credibility finding that

19   provided the basis for the [immigration judge’s] denial of

20   petitioner’s   underlying     asylum    application”).    The   card

21   purportedly showing that Singh is a member of Youth Akali Dal

22   Amritsar USA, Inc., did not remedy the defects in Singh’s

                                      5
 1   original claim because the card was issued in June 2018, after

 2   the BIA’s denial of his previous motion to reopen. Thus, the

 3   2018 card did not corroborate that he engaged in relevant

 4   political activities at the time of his original or 2017

 5   asylum application.

 6       The   BIA    also   did   not    abuse   its   discretion   by   not

 7   crediting a letter from the Sikh Cultural Society, Inc.,

 8   because that letter was prepared after the BIA’s denial of

 9   Singh’s previous motion to reopen and, in any event, was

10   lacking in detail. See Qin Wen Zheng v. Gonzales, 500 F.3d

11   143, 147–48 (2d Cir. 2007) (holding that BIA may decline to

12   credit documentary evidence submitted in support of a motion

13   to reopen based on legitimate concerns, which may stem from

14   immigration judge’s prior adverse credibility determination,

15   about petitioner’s credibility). Accordingly, the BIA could

16   reasonably      determine     that   any     evidence   of   increased

17   persecution of Sikh political activists or Sikh practitioners

18   was not material because Singh did not rebut the adverse

19   credibility determination. See Kaur, 413 F.3d at 234. Because

20   the BIA did not abuse its discretion in determining that Singh

21   did not show a material change in conditions in India, it did

22   not err in denying Singh’s motion as untimely and number

                                          6
1   barred. See Ali, 448 F.3d at 517.

2       For the foregoing reasons, the petition for review is

3   DENIED. Singh’s stay motion and the Government’s motion to

4   expedite are DENIED as moot.

5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe,
7                              Clerk of Court




                                   7
