     Case: 15-60733      Document: 00513727674         Page: 1    Date Filed: 10/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 15-60733
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       October 20, 2016
                                                                           Lyle W. Cayce
LOVEPREET SINGH,                                                                Clerk


                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A205 195 242


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Lovepreet Singh, a native and citizen of India, petitions for review of the
order by the Board of Immigration Appeals (BIA) denying his second motion to
rescind and reopen an in absentia order of removal. He challenges the BIA’s
conclusion that he does not merit equitable tolling of the otherwise number-
barred and time-barred motion. In support of his claim for equitable tolling,




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-60733

Singh argues that he suffered from ineffective assistance of counsel from the
attorney who prepared his first motion to rescind.
      This court has jurisdiction to review an alien’s request for equitable
tolling of a motion to reopen deadline or number bar. Mata v. Lynch, 135 S.
Ct. 2150, 2154 (2015); Lugo-Resendez, ___ F.3d ___, No. 14-60865, 2016 WL
4056051, at *2 (5th Cir. July 28, 2016). We review the order of the BIA, but
we will also consider the underlying decision of the immigration judge if it
influenced the BIA’s decision. Gomez-Palacios v. Holder, 560 F.3d 354, 358
(5th Cir. 2009). In reviewing the denial of a motion to rescind and reopen, “this
court applies a highly deferential abuse-of-discretion standard, regardless of
the basis of the alien’s request for relief.” Id. The decision to deny constitutes
an abuse of discretion if it is “capricious, without foundation in the evidence,
or otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Id. Generally speaking, motions to reopen
removal proceedings are disfavored, and the moving party must satisfy a heavy
burden. Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006).
      Although Singh argues that his former attorney unreasonably waited
longer than 180 days before filing the motion, it is immaterial here why the
attorney waited that length of time. Because there was no deadline for the
notice-based motion to rescind and reopen, the 180-day deadline only applied
if the proper legal strategy was to file a motion to rescind and reopen that
demonstrated that Singh’s “failure to appear was due to exceptional
circumstances.” 8 U.S.C. § 1229a(b)(5)(C)(i) (emphasis added).
      The record does not support the conclusion that Singh’s failure to appear
was due to ineffective assistance of counsel. Instead, the record supports that
Singh’s failure to appear was due to his own noncompliance with his duties to
(1) update the immigration court with his address and (2) maintain



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                                  No. 15-60733

communication with his counsel of record at the time. Although Singh was
warned by immigration authorities of his duty to keep his address updated, he
admits that he moved to an address other than the address that he gave to the
immigration authorities upon his release from detention.               8 U.S.C.
§ 1229(a)(1)(F) (requiring the alien to immediately provide his address to the
Immigration Court); see § 1229a(b)(5)(A) (indicating that the § 1229(a)(1)(F)
address is the one most recently provided). Moreover, Singh was personally
served with the Notice to Appear, which provided him warnings of the
consequences of a failure to appear, in compliance with the statutory warning
and notice requirements.      § 1229(a)(2)(A); § 1229a(b)(5).    Nor did Singh
maintain communication with his attorney of record, who forwarded the
hearing notice to Singh’s § 1229(a)(1)(F) address. Additionally, Singh never
attempted to contact the Immigration Court concerning his new address.
Finally, the attorney whom Singh alleges was ineffective was not even counsel
of record at the time that Singh failed to appear. These facts all support the
conclusion that Singh’s failure to appear was not due to exceptional
circumstances in the form of ineffective assistance of counsel. Here, counsel’s
strategic decision to forgo such an exceptional circumstances argument was
not ineffective assistance. Thus, we are satisfied that the BIA’s reasoning was
not “capricious, without foundation in the evidence, or otherwise so irrational
that it is arbitrary rather than the result of any perceptible rational approach.”
Gomez-Palacios, 560 F.3d at 358.
      The petition for review is therefore DENIED.




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