         09-1419-ag
         Singh v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A072 764 161
                            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 25 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                RICHARD C. WESLEY,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _________________________________________
12
13       YOGA SINGH,
14                Petitioner,
15
16                         v.                                   09-1419-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               William Frick, Seattle, Washington. 1
24
25       FOR RESPONDENT:               Tony West, Deputy Assistant Attorney


                  1
               Petitioner’s prior counsel, Martin Avila Robles,
         submitted a brief in this case. Although he was later
         granted leave to withdraw as counsel, his brief remains a
         part of the record, and we have considered it.
1                            General; Greg D. Mack, Senior
2                            Litigation Counsel; Richard
3                            Zanfardino, Trial Attorney, Office
4                            of Immigration Litigation, United
5                            States Department of Justice,
6                            Washington, D.C.
7
8         UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED.   Petitioner’s motion to remand is also DENIED.

12        Petitioner Yoga Singh, a native and citizen of India,

13   seeks review of the March 17, 2009, order of the BIA,

14   affirming the October 3, 2008, decision of Immigration Judge

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

16   In re Yoga Singh, No. A072 764 161 (B.I.A. Mar. 17, 2009),

17   aff’g No. A072 764 161 (Immig. Ct. N.Y. City Oct. 3, 2008).

18   Singh also moves this Court to remand his case to the BIA

19   pending adjudication of his application for adjustment of

20   status.   We assume the parties’ familiarity with the

21   underlying facts and procedural history of the case.

22   I.   Motion to Remand

23        As a preliminary matter, we will deny Singh’s motion

24   for a “Continuance/Remand.”   Singh alleges that remand is

25   appropriate because he is eligible for adjustment of status

26   under Matter of Yauri, 25 I.& N. Dec. 103 (BIA 2009), and

                                   2
1    that he has an adjustment application pending with

2    U.S.C.I.S.   As a general matter, we may not consider

3    evidence that is not part of the administrative record.        See

4    8 U.S.C. § 1252(b)(4)(A).     To the extent we retain any

5    inherent equitable power to remand, such relief is not

6    warranted in this case.     See Xiao Xing Ni v. Gonzales, 494

7    F.3d 260, 269 (2d Cir. 2007).

8    II.   Petition for Review

9          We also deny the petition for review.   Motions to

10   reopen in absentia exclusion orders are governed by

11   different rules depending on whether the movant seeks to

12   rescind the order or present new evidence.     See Song Jin Wu

13   v. INS, 436 F.3d 157, 163 (2d Cir. 2006); In re M-S-, 22 I.

14   & N. Dec. 349, 353-55 (BIA 1998) (en banc).     Accordingly,

15   when, as here, an alien files a motion that seeks both

16   rescission of an in absentia exclusion order, and reopening

17   of proceedings to apply for new relief, we treat the BIA’s

18   decision as having denied distinct motions to rescind and to

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

20   2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1

21   (2d Cir. 2006).   We review the BIA’s denial of a motion to

22   reopen or to rescind an in absentia removal order for abuse


                                     3
1    of discretion.    See Alrefae, 471 F.3d at 357.

2        A.      Motion to Rescind

3        The agency’s regulations provide that motions to

4    rescind in absentia orders of exclusion are not subject to

5    time or numerical limitations, but the alien must

6    nonetheless demonstrate that he had reasonable cause for his

7    failure to appear.     See

8    8 C.F.R. § 1003.23(b)(4)(B); Matter of N-B-, 22 I.& N. Dec.

9    590, 591 (BIA 1999).     Even though Singh was in exclusion

10   proceedings and there was no deadline applicable to his

11   motion to rescind, see Matter of N-B-, 22 I. & N. Dec. at

12   593, it does not follow that the BIA was foreclosed from

13   denying his motion as a matter of discretion, based on its

14   finding that Singh failed to exercise due diligence in the

15   eight years after he became aware he had been ordered

16   excluded.    See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005).

17   This Court’s requirement that aliens exercise due diligence

18   in the equitable tolling context applies with equal force in

19   this situation.    See Iavorski v. INS, 232 F.3d 124, 134 (2d

20   Cir. 2000); see also Wei Guang Wang v. BIA, 437 F.3d 270,

21   273 -274 (2d Cir. 2006) (“[I]t would be ironic, indeed, if



                                     4
1    petitioners . . . who have remained in the United States

2    illegally following an order of deportation, were permitted

3    to have a second and third bite at the apple simply because

4    they managed to marry and have children while evading

5    authorities. This apparent gaming of the system in an effort

6    to avoid deportation is not tolerated by the existing

7    regulatory scheme.”).    Thus, the agency reasonably denied

8    Singh’s motion to rescind based on his lack of due

9    diligence. 2   See INS v. Abudu, 485 U.S. 94, 105, 107-08

10   (1988).

11        B.   Motion to Reopen

12        The agency also did not abuse its discretion in denying

13   Singh’s motion to reopen. “A motion to reopen proceedings

14   shall state the new facts that will be proven at a hearing .

15   . . and shall be supported by affidavits and other

16   evidentiary material.”    8 C.F.R. § 1003.2(c)(1);   see also

17   Twum, 411 F.3d at 58 n.2 (“[T]he BIA has also held that



          2
            Contrary to Singh’s argument, because the BIA reviews
     an IJ’s discretionary decisions de novo, it did not act
     ultra vires or engage in impermissible factfinding by
     reaching the same conclusion based upon different reasoning
     and evidence in the record. See 8 C.F.R. § 1003.1(d)(3)(ii);
     see also Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (BIA
     2008).

                                    5
1    exclusion proceedings conducted in absentia may also be

2    reopened absent a showing of reasonable cause where the

3    respondent seeks asylum or withholding of removal and has

4    made a proper showing of changed country conditions creating

5    a reasonable likelihood of success on the merits.”).    In his

6    motion, Singh merely stated his intent to apply for asylum

7    without providing any evidentiary support for his claim.

8    Thus, the agency reasonably determined that he failed to

9    demonstrate his prima facie eligibility for relief from

10   exclusion.   See Abudu, 485 U.S. at 104-05; Matter of A-N- &

11   R-M-N-, 22 I.& N. Dec. 953, 956 (BIA 1999).

12       For the foregoing reasons, the motion to remand and the

13   petition for review are DENIED.   As we have completed our

14   review, any stay of removal that the Court previously

15   granted in this petition is VACATED, and any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17   Any pending request for oral argument in this petition is

18   DENIED in accordance with Federal Rule of Appellate

19   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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