                                                                              FILED
                            NOT FOR PUBLICATION                                MAY 06 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


AMRITPAL SINGH,                                  No. 07-71985

              Petitioner,                        Agency No. A077-814-770

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                              Submitted May 2, 2011**
                                Pasadena, California

Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.

       Amritpal Singh petitions for review of the Board of Immigration Appeals’

denial of his second motion to reopen. We deny the petition.

       The Board did not abuse its discretion in declining to equitably toll the time

for filing the motion. See Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2003). First, Singh did not exercise due diligence in discovering that his counsel,

Sarin, failed to file a brief in support of Singh’s appeal. Singh waited over two

years after obtaining his file from Sarin before hiring new counsel. The contract

with Stephens stated that Stephens, upon whom Singh relied, was only an

“immigration consultant.” See Hernandez v. Mukasey, 524 F.3d 1014, 1020 (9th

Cir. 2008) (“[R]eliance upon the advice of a non-attorney cannot form the basis of

a claim for ineffective assistance of counsel in a removal proceeding.”). Second, in

light of Singh’s ability to provide detailed testimony about material facts and the

lack of evidence that Sarin was informed of any injury to Singh’s head, Sarin did

not provide ineffective assistance of counsel by failing to investigate or argue

Singh’s alleged mental deficiencies. Cf. Stankewitz v. Woodford, 365 F.3d 706,

719-20 (9th Cir. 2004).

      Absent equitable tolling, the motion to reopen is time and number barred.

The motion was filed well beyond the 90-day statutory limitation. See 8 U.S.C. §

1229a(c)(7)(C)(i); Azarte v. Ashcroft, 394 F.3d 1278, 1283-84 (9th Cir. 2005). It is

undisputed that this was Singh’s second motion to reopen, which Singh was not

entitled to file. See 8 U.S.C. § 1229a(c)(7)(A); Shin v. Mukasey, 547 F.3d 1019,

1025 (9th Cir. 2008).




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      Finally, the Board properly exercised its discretion in declining to reissue its

decision. Singh does not dispute that the original decision was provided to him in

compliance with federal regulations. See Singh v. Gonzales, 469 F.3d 863, 867

(9th Cir. 2006), withdrawn and superseded on other grounds by 494 F.3d 1170

(9th Cir. 2007).

      PETITION DENIED.




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