                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2008

Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2604




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-2604


                                KULWINDER SINGH,
                                                           Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES


                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                             (Agency No. A72-797-034)
                   Immigration Judge: Honorable Eugene Pugliese


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 23, 2008

              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                             (Opinion filed April 25, 2008)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Kulwinder Singh, an Indian native and citizen, petitions for review of a final order

of the Board of Immigration Appeals (“BIA”) denying his motion to reopen removal

proceedings. We will deny Singh’s petition for review.

      In 1994, Singh filed his initial request for asylum. Singh argued that he feared
returning to India because he would be persecuted for his practice of Sikhism and his

political activism. The Immigration Judge (“IJ”) found his testimony to be incredible and

denied his application for asylum and withholding of removal. The BIA dismissed the

ensuing appeal on August 22, 2001. Singh filed a motion to reconsider on April 22, 2002

which the BIA denied as untimely. One year later, Singh sought to reopen his case under

the Barahona-Gomez v. Ashcroft, 243 F.Supp.2d 1029 (N.D. Cal. 2002) settlement. The

BIA denied his motion. Singh filed the second motion to reopen in January 2007, arguing

that, due to changed country conditions since the IJ’s decision, he would be persecuted if

he returned to India. Singh also argued for reopening based on his former counsel’s

ineffectiveness, a pending labor certificate and equal protection and due process claims.

The BIA denied his motion and Singh filed a timely petition for review.

       We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252.

Denials of motions to reopen removal proceedings fall within the discretion of the BIA.

See 8 C.F.R. § 1003.2(a). Thus, we review the BIA’s denial of Singh’s motion to reopen

for abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). Under the

abuse of discretion standard of review, we will not disturb the BIA’s decision unless it

was “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d

Cir. 2004).

       Ordinarily, an alien may file only one motion to reopen removal proceedings,

which must be filed no later than ninety days after the decision was issued in the

proceeding the alien seeks to reopen. 8 U.S.C. § 1229a(c)(7). The January 2007 motion

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was Singh’s second motion to reopen and it was filed past the ninety-day deadline.

“However, the ‘time and numerical limitations . . . shall not apply’ to motions to reopen

that ‘apply or reapply for asylum or withholding of deportation based on changed

circumstances arising in the country of nationality . . . if such evidence is material and

was not available and could not have been discovered or presented at the previous

hearing.’” Shardar v. Attorney Gen., 503 F.3d 308, 313 (3d Cir. 2007) (quoting 8 C.F.R.

§ 1003.2(c)(3)).

         The BIA did not abuse its discretion in finding that Singh failed to show changed

circumstances in India which would warrant reopening his removal proceedings. A

motion to reopen must establish prima facie eligibility for asylum. Guo, 386 F.3d at 563.

Singh submitted only an affidavit stating that the police came to his house in India and

threatened to arrest him for his past political activities. The affidavit re-asserted claims

which were contained in Singh’s second amended asylum application and which the IJ

found to be incredible during Singh’s original removal proceedings. Thus Singh failed to

produce “objective evidence showing a ‘reasonable likelihood’ that he can establish [that

he is entitled to relief].” Id. quoting Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.

2002).

         Unlike changed country circumstances, ineffective assistance of counsel is not a

regulatory basis to seek an exception to the time and number limits for a motion to

reopen. See 8 C.F.R. § 1003.2(c). Singh, however, could circumvent the ninety-day time

limitation on motions to re-open through equitable tolling. See Mahmood v. Gonzales,

                                              3
427 F.3d 248, 251 (3d Cir. 2005). We have not addressed in a precedential decision

whether numerical limits on motions to reopen may be equitably tolled. Luntungan v.

Attorney Gen., 449 F.3d 551, 557 (3d Cir. 2006). Even assuming, arguendo, that the one

motion limit is subject to tolling, Singh’s ineffectiveness assistance of counsel claim

cannot succeed because of his failure to comply with the requirements of Matter of

Lozada, 19 I. & N. Dec. 637, 1988 WL 235454 (BIA 1998).

       Under Lozada, an alien must (1) provide an affidavit attesting to the relevant facts;

(2) inform former counsel of the allegations, provide counsel with an opportunity to

respond, and submit counsel’s response to the BIA; and (3) state whether a complaint has

been filed with the appropriate disciplinary authorities, and if not, why not. See Fadiga v.

Attorney Gen., 488 F.3d 142, 156. In Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001),

we held that it was not an abuse of the BIA’s discretion to reject an ineffective assistance

of counsel claim for failure to comply with Lozada’s three-prong test. Singh correctly

points out that we have warned against the inherent dangers of a strict formulaic

interpretation of Lozada. Lu, 259 F.3d at 133 (“we are concerned that courts could apply

Lozada’s third prong so strictly that it would effectively require all petitioners claiming

ineffective assistance to file a bar complaint.”). Singh, however, has failed to satisfy or

offer a reasonable explanation for his failure to satisfy any of the three prongs of the test.

Singh submitted an affidavit claiming ineffective assistance of counsel “for failure to

prepare for asylum with corroborating documents, failure to file a timely application for

motion to reopen.” Singh’s ineffective assistance of counsel claims change at every stage

                                               4
of the proceedings: he raised different ineffectiveness claims in his affidavit, before the

BIA and on appeal in this Court. Moreover, Singh fails to specify which of his five

former attorneys provided ineffective assistance or whether the alleged ineffective

attorney was informed of Singh’s claim. Thus, the BIA did not abuse its discretion in

denying the motion because of Singh’s failure to comply with the procedural

requirements of Lozada.

       Singh also argues that the BIA erred in refusing to sua sponte reopen his removal

proceedings. See 8 C.F.R. § 1003.2(a) (“The Board may at any time reopen or reconsider

on its own motion any case in which it has rendered a decision”). We lack jurisdiction to

review the BIA’s decision declining to exercise its discretion to reopen or reconsider

Singh’s case. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).

       Finally, Singh argues throughout his brief that the delay in the processing of his

immigration benefits violates his Fifth Amendment right to due process. As we have

stated, “the various discretionary privileges and benefits conferred on aliens by our

federal immigration laws do not vest in aliens a constitutional right to have their

immigration matters adjudicated in the most expeditious manner possible.” Mudric v.

Attorney Gen., 469 F.3d 94, 99 (3d Cir. 2006).

       We have considered the remaining arguments Singh makes in his petition and find

them to be meritless. Accordingly, we will deny the petition for review.




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