         11-3239
         Kaur v. Holder
                                                                                       BIA
                                                                               A075 306 900
                           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 27th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                BARRINGTON D. PARKER,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _______________________________________
12
13       AMARJIT KAUR,
14                Petitioner,
15
16                        v.                                    11-3239
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Amarjit Kaur, pro se, South Richmond
24                                     Hill, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Emily Anne
28                                     Radford, Assistant Director; Craig
29                                     A. Newell, Jr., Trial Attorney,
 1                             Office of Immigration Litigation,
 2                             United States Department of Justice,
 3                             Washington, D.C.

 4       UPON DUE CONSIDERATION of this petition for review of a

 5   decision of the Board of Immigration Appeals (“BIA”), it is

 6   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 7   review is DENIED.

 8       Amarjit Kaur, a native and citizen of India, seeks

 9   review of a June 11, 2011, decision of the BIA denying her

10   motion to reopen.   In re Amarjit Kaur, No. A075 306 900

11   (B.I.A. June 11, 2011).    We assume the parties’ familiarity

12   with the underlying facts and procedural history of this

13   case.

14       We review the BIA’s denial of a motion to reopen for

15   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

16   (2d Cir. 2006) (per curiam).    There is no dispute that

17   Kaur’s motion to reopen was untimely and number-barred.

18   See 8 U.S.C. § 1229a(c)(7)(A),(C)(i); see also 8 C.F.R.

19   § 1003.2(c)(2).

20       The time and number limitations applicable to motions

21   to reopen may be equitably tolled to accommodate claims of

22   ineffective assistance of counsel.    See Cekic v. INS, 435

23   F.3d 167, 170 (2d Cir. 2006); see also Jin Bo Zhao v. INS,


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 1   452 F.3d 154, 159-60 (2d Cir. 2006) (per curiam) (holding

 2   that the BIA erred in finding petitioner’s second motion to

 3   reopen number-barred, because his first motion was denied

 4   due to ineffective assistance).    However, the movant must

 5   demonstrate, inter alia, that she suffered actual prejudice

 6   as a result of counsel’s ineffective performance.

 7   Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994).

 8       Kaur argued that her prior counsel provided ineffective

 9   assistance by failing to pursue relief under the Convention

10   Against Torture (“CAT”) either during the pendency of her

11   appeal of the IJ’s denial of her motion to rescind her in

12   absentia order of removal, or in subsequent motions to

13   reopen.    To show actual prejudice, Kaur was required to

14   “make a prima facie showing that [s]he would have been

15   eligible for the relief [sought] and that [s]he could have

16   made a strong showing in support of [her] application” if

17   not for her counsel’s ineffectiveness.    Id.; see also

18   Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per

19   curiam).    Kaur failed to make such a showing.

20       First, as the BIA noted, Kaur offered no evidence

21   indicating that she would have established her prima facie

22   eligibility for CAT relief at the time when her appeal was

23   pending before the BIA.    See Pierre v. Gonzales, 502 F.3d


                                    3
 1   109, 118–19 (2d Cir. 2007).    Moreover, as the BIA noted,

 2   Kaur did not make a prima facie showing that she would have

 3   been eligible for CAT relief at the time when her former

 4   counsel filed her prior motions to reopen, because she

 5   failed to present any evidence indicating either that she

 6   would be singled out for torture by Indian security forces,

 7   or that a similarly-situated individual in her particular

 8   circumstances–i.e., a Sikh and member of the Shiromani Akali

 9   Dal Mann– would be subjected to torture.    See Mu Xiang Lin

10   v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.

11   2005).    Therefore, the BIA did not abuse its discretion in

12   denying Kaur’s motion to reopen.

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

16   is VACATED, and any pending motion for a stay of removal in

17   this petition is DISMISSED as moot. Any pending request for

18   oral argument in this petition is DENIED in accordance with

19   Federal Rule of Appellate Procedure 34(a)(2), and Second

20   Circuit Local Rule 34.1(b).

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




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