         13-4754
         Singh v. Holder
                                                                                         BIA
                                                                                A073 133 577
                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of December, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                JOSÉ A. CABRANES,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       GURDEV SINGH,
14                Petitioner,
15
16                         v.                                      13-4754
17                                                                 NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Dalbir Singh, Esq., New York, New
25                                      York.
26
27       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
28                                      General; Emily Anne Radford,
29                                      Assistant Director; Nehal H. Kamani,
30                                      Trial Attorney, Office of
31                                      Immigration Litigation, United
32                                      States Department of Justice,
33                                      Washington, D.C.
34
 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 Gurdev Singh, a native and citizen of India,

 6   seeks review of the November 21, 2013, order of the BIA

 7   denying his second motion to rescind a 1994 exclusion order

 8   entered in absentia.   In re Gurdev Singh, No. A073 133 577

 9   (B.I.A. Nov. 21, 2013).   We assume the parties’ familiarity

10   with the underlying facts and procedural history of the

11   case.

12       We review the agency’s denial of a motion to reopen

13   exclusion proceedings for abuse of discretion.     Twum v. INS,

14   411 F.3d 54, 58 (2d Cir. 2005); Ke Zhen Zhao v. U.S. Dep't

15   of Justice, 265 F.3d 83, 93 (2d Cir. 2001).   The immigration

16   judge ordered Singh excluded in absentia in 1994 after he

17   failed to appear for a hearing.   Orders entered in absentia

18   may be rescinded only upon a showing of “reasonable cause”

19   for the failure to appear.   8 C.F.R. §

20   1003.23(b)(4)(iii)(B); Twum, 411 F.3d at 58; see also In re

21   N-B-, 22 I. & N. Dec. 590, 592-93 (B.I.A. 1999).    Both lack

22   of notice and ineffective assistance of counsel may


                                   2
 1   constitute “reasonable cause” for failing to appear at a

 2   hearing.   See in re Mancera, 22 I. & N. Dec. 79, 82 (B.I.A.

 3   1999) (lack of notice justified alien’s failure to appear at

 4   a scheduled deportation hearing); Aris v. Mukasey, 517 F.3d

 5   595, 599 (2d Cir. 2008) (a lawyer’s inaccurate advice to his

 6   client concerning an immigration hearing date can constitute

 7   “exceptional circumstances” excusing the alien’s failure to

 8   appear).

 9       The BIA did not abuse its discretion in denying

10   Singh’s motion.   Singh was given notice of his July 1, 1994

11   hearing when an immigration officer served him with written

12   notice and read the notice to him in English while his uncle

13   translated it into Punjabi.   The notice included the date,

14   time, and place of the hearing and was sufficient to put him

15   on notice of that hearing.    See Lopes v. Gonzales, 468 F.3d

16   81, 84-85 (2d Cir. 2006) (notice was not defective where the

17   agency failed to provide it in the alien’s native language).

18   Singh does not dispute that he was given this notice, but

19   nevertheless insists that he did not know that he had a

20   hearing.   He points to his young age at the time (14) and

21   his lack of English as causes of his confusion.   However,

22   the notice was translated into his native language, and his


                                    3
 1   uncle was present at the time of service to clear up any

 2   misunderstandings.   Moreover, Singh was living with his

 3   uncle at the time of his hearing, and he does not argue that

 4   his uncle was unaware of his hearing or its consequences.

 5       Nor did the BIA abuse its discretion in declining to

 6   rescind based on ineffective assistance of counsel.     Singh

 7   failed to substantially comply with the procedural

 8   requirements for bringing an ineffective assistance claim.

 9   The requirements include submitting (1) an affidavit

10   describing in detail the agreement with counsel, (2) proof

11   that counsel was informed of the allegations and had an

12   opportunity to respond, and (3) a statement regarding

13   whether a complaint was filed with the appropriate

14   disciplinary authorities, and, if not, why not.   In re

15   Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988); Jian Yun

16   Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 47 (2d Cir.

17   2005)(holding that an “alien who has failed to comply

18   substantially with the Lozada requirements . . . forfeits

19   her ineffective assistance of counsel claim.”).   Here, while

20   Singh did submit the required affidavit of agreement, he did

21   not submit any proof that he informed counsel of the

22   allegations, except to say that he sent prior counsel a


                                   4
 1   letter.   Accordingly, the BIA did not err in finding that

 2   Singh failed to comply substantially with the Lozada

 3   requirements.

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

 7   is VACATED, and any pending motion for a stay of removal in

 8   this petition is DISMISSED as moot.    Any pending request for

 9   oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2), and Second

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
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