         13-1553
         Singh v. Holder
                                                                                      BIA
                                                                              A079 141 286

                            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 9th day of May, two thousand fourteen.
  5
  6      PRESENT:
  7                PIERRE N. LEVAL,
  8                JOSÉ A. CABRANES,
  9                CHRISTOPHER F. DRONEY,
 10                    Circuit Judges.
 11      _________________________________________
 12
 13      SUKHWINDER SINGH,
 14               Petitioner,
 15
 16                        v.                                    13-1553
 17                                                              NAC
 18      ERIC H. HOLDER, JR., UNITED STATES
 19      ATTORNEY GENERAL,
 20               Respondent.
 21      _________________________________________
 22
 23      FOR PETITIONER:               Robert B. Jobe, San Francisco,
 24                                    California.
 25
 26      FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
 27                                    General; Douglas E. Ginsburg,
 28                                    Assistant Director; Katherine A.
 29                                    Smith, Trial Attorney, Office of
 30                                    Immigration Litigation, United
 31                                    States Department of Justice,
 32                                    Washington, D.C.
 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 Sukhwinder Singh, a native and citizen of

 6   India, seeks review of the April 15, 2013, order of the BIA

 7   denying his fifth motion to reopen.    In re Sukhwinder Singh,

 8   No. A079 141 286 (B.I.A. Apr. 15, 2013).    We assume the

 9   parties’ familiarity with the underlying facts and

10   procedural history in this case.    We review the agency’s

11   denial of Singh’s motion to reopen for abuse of discretion.

12   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

13       An alien may file one motion to reopen no later than 90

14   days after the date on which the final administrative

15   decision was rendered in the proceedings sought to be

16   reopened.    8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

17   § 1003.2(c)(2).    Singh’s 2013 motion was untimely and number

18   barred because he filed four motions to reopen since he was

19   ordered removed in 2003.    See 8 U.S.C. § 1229a(c)(7)(A),

20   (C)(i); 8 C.F.R. § 1003.2(c)(2).    However, the time

21   limitation does not apply to a motion to rescind if the

22   alien demonstrates that he did not receive notice of the

23   consequences for failing to appear at his hearing, as stated


                                    2
 1   in 8 U.S.C. § 1229a(b)(5).     8 C.F.R. § 1003.23(b)(4)(ii).

 2   The limitations may also be equitably tolled upon a showing

 3   of ineffective assistance of counsel.     See Iavorski v. INS,

 4   232 F.3d 124, 135 (2d Cir. 2000).     The BIA reasonably found

 5   that neither exception applied here.

 6       Singh first argues that his Notice to Appear

 7   misrepresented the consequences of failing to appear because

 8   it stated that, in his absence, an in absentia removal order

 9   “may,” rather than “shall,” be entered.     To the contrary,

10   the NTA was accurate.     Failure to appear despite proper

11   notice “shall” result in an in absentia removal order, but

12   only if the Government establishes notice and removability.

13   8 U.S.C. § 1229a(b)(5).     Singh also asserts that the Notice

14   was deficient because it failed to mention the procedures

15   for rescinding an in absentia order, as set forth in the

16   last three subsections of § 1229a(b)(5).     However, the

17   statute requires notice only of the consequences of failing

18   to appear, not the procedure to reverse the resulting order.

19   See 8 U.S.C. § 1229a(a)(1)(G)(ii).     Accordingly, the BIA did

20   not abuse its discretion in finding that Singh’s motion to

21   rescind was untimely.     See 8 C.F.R. § 1003.23(b)(4)(ii).

22       The BIA also reasonably declined to equitably toll the

23   time limitation imposed on Singh’s motion.     To establish


                                     3
 1   ineffective assistance of counsel, a movant must establish

 2   that the alleged ineffective assistance occurred within the

 3   scope of an existing attorney-client relationship and that

 4   he exercised due diligence in pursuing his claim.        See

 5   Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); Piranej

 6   v. Mukasey, 516 F.3d 137, 144-45 (2d Cir. 2008).    Contrary

 7   to Singh’s contention that his former counsel represented

 8   him throughout his proceedings, the BIA reasonably found

 9   that their relationship encompassed only the filing of

10   Singh’s first motion to reopen and the appeal from the

11   denial of that motion.

12       Even assuming, as the BIA did, that his former counsel

13   provided ineffective assistance, the BIA reasonably found

14   that Singh should have discovered the lack of notice in

15   2003, when he was ordered removed in absentia.     The

16   purported issue also became apparent in 2005, when the BIA

17   denied his second motion to reopen.   Given Singh’s delay

18   between discovering his attorney’s ineffective assistance

19   and filing his motion to reopen, the BIA reasonably found

20   that he failed to exercise due diligence in pursuing his

21   claim.   See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

22   2007) (“A petitioner who waits two years or longer to take

23   steps to reopen a proceedings ha[d] failed to demonstrate


                                   4
 1   due diligence.”).    The BIA therefore did not abuse its

 2   discretion in declining to equitably toll the motion and

 3   denying it as untimely.     See Rashid, 533 F.3d at 131.

 4       For the foregoing reasons, the petition for review is

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

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

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

 8   is DISMISSED as moot.     Any pending request for oral argument

 9   in this petition is DENIED in accordance with Federal Rule of

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

11   34.1(b).

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