         11-2778-ag
         Singh v. Holder
                                                                                       BIA
                                                                               A073 628 064


                            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 31st day of July, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PIERRE N. LEVAL,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       DILBAR SINGH,
15                Petitioner,
16
17                         v.                                   11-2778-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Randy Olen, Providence, Rhode
25                                     Island.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Daniel E. Goldman, Senior
29                                     Litigation Counsel; Puneet Cheema,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.

 5       UPON DUE CONSIDERATION of this petition for review of a

 6   decision of the Board of Immigration Appeals (“BIA”), it is
 7   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 8   review is DENIED.
 9       Dilbar Singh, a native and citizen of India, seeks

10   review of a June 23, 2011, decision of the BIA denying his

11   motion to reopen.     In re Dilbar Singh, No. A073 628 064

12   (B.I.A. June 23, 2011).     We assume the parties’ familiarity

13   with the underlying facts and procedural history of this

14   case.

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

16   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

17   (2d Cir. 2006).     There is no dispute that Singh’s motion to

18   reopen was untimely because it was filed more than eight

19   years after the agency’s final order of removal.

20   See 8 U.S.C. § 1229a(c)(7)(C)(i).     However, time limitations

21   on motions to reopen may be equitably tolled to accommodate

22   claims of ineffective assistance of counsel, provided that,

23   among other things, the movant has exercised “due diligence”

24   in vindicating his rights.     Cekic v. INS, 435 F.3d 167, 170


                                     2
 1   (2d Cir. 2006).   An alien is required to exercise due

 2   diligence in pursuing his case both before and after he has

 3   or should have discovered the alleged ineffective

 4   assistance. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d

 5   Cir. 2008).

 6       Here, the BIA reasonably found that Singh failed to

 7   demonstrate that he had exercised due diligence.

 8   Id. While the BIA credited Singh’s contention that he had

 9   maintained regular contact with his prior counsel before

10   December 2005, it nevertheless reasonably found that Singh

11   did not recount any steps he had taken in pursuing his case

12   between December 2005, when Singh admittedly ceased

13   contacting his prior counsel, and October 2009, when Singh

14   consulted with a new attorney and allegedly discovered his

15   prior counsel’s ineffectiveness.   See Cekic, 435 F.3d at 172

16   (denying motion to reopen where petitioners’ “submissions in

17   support of their second motion to reopen fail[ed] to provide

18   even the slightest indication that they took any action to

19   protect themselves”).   Although Singh argues that he ceased

20   contacting his prior counsel in December 2005 because his

21   counsel insisted that “it would take many years for [his]

22   appeal to be decided” and had assured him that he would take


                                   3
 1   care of Singh’s case, the BIA reasonably determined that

 2   Singh’s failure to contact his prior counsel to inquire as

 3   to the status of his case for nearly four years did not

 4   constitute due diligence.   See Iavorski v. INS, 232 F.3d

 5   124, 134 (2d Cir. 2000) (finding a lack of due diligence

 6   when petitioner failed to investigate status of appeal for

 7   “nearly two years”).   Accordingly, the BIA did not abuse its

 8   discretion in denying the motion to reopen.

 9       Singh also challenges the BIA’s decision not to

10   exercise its authority to reopen his proceedings sua sponte.

11   Although we generally lack jurisdiction to consider the

12   BIA’s “entirely discretionary” decision declining to sua

13   sponte reopen a removal or deportation proceeding, see Ali,

14   448 at 518; Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

15   2009), we nevertheless retain jurisdiction to review such

16   decisions when the BIA misperceives the law, see Mahmood,

17   570 F.3d at 469.   Here, however, the BIA did not misperceive

18   the law in finding that Singh failed to show extraordinary

19   circumstances warranting sua sponte reopening.

20       Moreover, even if we had jurisdiction to review such

21   decisions not to sua sponte reopen, the BIA did not err in

22   finding that Singh failed to demonstrate his prima facie

23   eligibility for CAT relief because, although the country

                                   4
 1   conditions evidence in the record indicated that individuals

 2   held under custodial arrest or detention had been tortured

 3   by Indian authorities, the record did not establish that

 4   Singh would be arrested, detained, or otherwise placed under

 5   custodial supervision upon his return to India.    Nor did the

 6   BIA err in finding that Singh failed to demonstrate his

 7   prima facie eligibility for adjustment of status, as Singh

 8   failed to present any documentary evidence that the I-130

 9   immigrant visa petition that his wife filed on his behalf

10   had been approved, or that a visa number was immediately

11   available to him.   See, e.g., 8 U.S.C. § 1255(a) (allowing

12   aliens who were inspected and admitted into the United

13   States to adjust their status to that of a lawful permanent

14   resident based on a family relationship, provided, inter

15   alia, that they are “eligible to receive an immigrant visa”

16   and “an immigrant visa is immediately available”);    8 U.S.C.

17   § 1255(i)(1) & (2) allowing certain aliens physically

18   present in the United States to adjust their status to that

19   of a lawful permanent resident based on a family

20   relationship or job offer, provided, inter alia, that they

21   are the beneficiaries of an approved visa petition, their

22   priority date is current, and they pay an additional fee).

23       For the foregoing reasons, the petition for review is
                                   5
1   DENIED.   As we have completed our review.   Singh’s pending

2   motion for a stay of removal in this petition is DENIED as

3   moot.

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