         11-3057-ag
         Singh v. Holder

                                                                                         BIA
                                                                                    Nelson, IJ
                                                                                 A073 172 406

                                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 New
 4       York, on the 18th day of July, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _________________________________________
12
13       HARMINDER SINGH,
14                Petitioner,
15
16                         v.                                     11-3057-ag
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Ethan P. Mandziara, Rita Isabel B.
24                                      Flores, Chicago Immigration Advocates,
25                                      Chicago, Illinois.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney General;
28                                      Terri J. Scadron, Assistant Director;
29                                      Wendy Benner-León, Trial Attorney,
30                                      Office of Immigration Litigation,
31                                      United States Department of Justice,
32                                      Washington, D.C.
1
2        UPON DUE CONSIDERATION of this petition for review of a

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

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

5    is DENIED.

6        Petitioner Harminder Singh, a native and citizen of

7    India, seeks review of a June 27, 2011, decision of the BIA

8    affirming the April 27, 2010, decision of Immigration Judge

9    (“IJ”) Barbara A. Nelson denying his motion to reopen his

10   immigration proceedings.   In re Harminder Singh, No. A073 172

11   406 (B.I.A. June 27, 2011), aff’g No. A073 172 406 (Immig. Ct.

12   N.Y.C. Apr. 27, 2010).   We assume the parties’ familiarity

13   with the underlying facts and procedural history of the case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions.    See Jigme Wangchuck v.

16   DHS, 448 F.3d 524, 528 (2d Cir. 2006).   We review for abuse of

17   discretion the denial of a motion to reopen proceedings in

18   order to rescind an in absentia removal order.    See Alrefae v.

19   Chertoff, 471 F.3d 353, 357 (2d Cir. 2006).   “An abuse of

20   discretion may be found . . . where the [BIA’s] decision

21   provides no rational explanation, inexplicably departs from

22   established policies, is devoid of any reasoning, or contains

23   only summary or conclusory statements; that is to say, where

                                    2
1    the Board has acted in an arbitrary or capricious manner.” Ke

2    Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.

3    2001) (internal citations omitted).    “We review the agency’s

4    factual findings under the substantial evidence standard,

5    treating them as ‘conclusive unless any reasonable adjudicator

6    would be compelled to conclude to the contrary.’” Mei Fun Wong

7    v. Holder, 633 F.3d 64, 68 (2d Cir. 2011) (quoting 8 U.S.C. §

8    1252(b)(4)(B)).

9        Pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i), an alien

10   seeking to have his in absentia removal order rescinded must

11   file a motion to reopen within 180 days of the removal order,

12   and demonstrate that his failure to appear was due to

13   “exceptional circumstances.”   However, a motion to rescind may

14   be filed at any time if the motion is based on a lack of

15   notice.   8 U.S.C. § 1229a(b)(5)(C)(ii).

16       Indisputably, Singh’s motion to reopen was untimely under

17   the 180-day period because he filed it more than eleven years

18   after he was ordered removed in absentia.    See 8 U.S.C.

19   § 1229a(b)(5)(C)(i), (c)(7)(C).    Here, the agency denied

20   Singh’s motion to reopen because it determined that he had

21   received notice of the October 1998 hearing that he failed to

22   attend, resulting in the IJ ordering him removed in absentia.


                                    3
1    Singh argues that he never received notice of his October 1998

2    hearing and, thus, the relevant time limitations do not apply

3    to his motion to reopen.    However,   substantial evidence in

4    the record supports the agency’s conclusion.     An August 1997

5    notice informing Singh of his October 1998 hearing notes that

6    “oral notice of the contents” of the August 1997 notice was

7    given to Singh in his “native language” or in one he

8    understood.    The October 1998 in absentia removal order

9    reflects that, at “an earlier hearing,” Singh had “admitted

10   the allegations of fact in the Order to Show Cause and [had]

11   conceded deportability.”    The order to show cause supports the

12   conclusion that Singh appeared at the August 1997 hearing,

13   admitted the allegations contained therein and conceded

14   removability, as the order to show cause contains handwritten

15   notations reflecting as much.

16       Singh argues that the record evidence is insufficient to

17   support the agency’s conclusion, particularly in light of his

18   affidavit claiming that he did not attend any hearings in his

19   proceedings.   The agency, however, reasonably elected to

20   credit its own records, made at the time of the proceedings in

21   question, over Singh’s self-interested affidavit sworn over

22   eleven years afterward.    Further, Singh points to nothing in


                                     4
1    the record aside from his affidavit suggesting that he was not

2    present at the August 1997 hearing or that he did not at that

3    time receive notice of the October 1998 hearing.    Accordingly,

4    nothing in the record compels the conclusion that Singh did

5    not receive notice of his October 1998 hearing.    See 8 U.S.C.

6    § 1252(b)(4)(B).

7        Time limitations on motions to reopen may be equitably

8    tolled to accommodate claims of ineffective assistance of

9    counsel, provided that, inter alia, the movant has exercised

10   “due diligence.”    See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.

11   2006).   Singh argues that the agency erred in declining to

12   toll the applicable time limitation on the basis of

13   ineffective assistance of counsel.

14       However, Singh suggests in his affidavit that he did

15   nothing to pursue his application for relief from the summer

16   of 1998 until January 2010 – a period of more than eleven

17   years – and then did so only after agents from the Bureau of

18   Immigration and Customs Enforcement (“ICE”) came to his home,

19   took his passport, and instructed him to appear for an

20   interview with immigration authorities.    “[A]n alien is

21   required to exercise due diligence during the entire period he

22   seeks to toll.”    Rashid v. Mukasey, 533 F.3d 127, 133 (2d Cir.


                                     5
1    2008).    In the exercise of reasonable diligence, Singh should

2    have taken some affirmative action directed toward his

3    immigration proceedings during the more than eleven-year

4    period he seeks to toll.    See id. (holding that due diligence

5    required petitioner to “follow up with his attorney, and . . .

6    if he received no response, to obtain new counsel, seek relief

7    from the agency on his own, or take other affirmative

8    action”).

9        Finally, Singh argues that the agency violated his due

10   process rights by failing to substantiate its factual

11   conclusion with the recording of his August 1997 immigration

12   hearing or by conducting an evidentiary hearing on the issue.

13   He points to no authority, however, requiring the IJ to

14   conduct any such hearing or to review the recording of the

15   relevant hearing.

16       For the foregoing reasons, the petition for review is

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

18   that the Court previously granted in this petition is VACATED,

19   and any pending motion for a stay of removal in this petition

20   is DISMISSED as moot. Any pending request for oral argument in

21   this petition is DENIED in accordance with Federal Rule of

22   Appellate Procedure 34(a)(2), and Second Circuit Local Rule


                                     6
1   34.1(b).

2              FOR THE COURT:
3              Catherine O’Hagan Wolfe, Clerk




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