                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                               May 16, 2017
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DAVINDER SINGH,

      Petitioner,

v.                                                         No. 16-9548
                                                       (Petition for Review)
JEFF SESSIONS,* United States Attorney
General,

       Respondent.
                       _________________________________

                           ORDER AND JUDGMENT**
                       _________________________________

Before TYMKOVICH, Chief Judge, McKAY and LUCERO, Circuit Judges.
                 _________________________________

       Davinder Singh, a native and citizen of India proceeding pro se, petitions for

review of an order issued by the Board of Immigration Appeals (BIA) denying his

second motion to reopen. We exercise jurisdiction under 8 U.S.C. § 1252 and deny

the petition.


       *
        In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this
action.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background

       Mr. Singh entered the United States in March 2014 and was detained by the

Department of Homeland Security (DHS), which initiated removal proceedings.

Mr. Singh was released on bond, and he provided a Tennessee address as his

residence. In April 2014 he hired Genet Getachew to represent him and to file a

motion for change of venue. According to Mr. Singh, she responded to his inquiries

by stating that it was “in process” and “still pending,” but she never actually filed the

motion. R. at 20, 21. He concedes that she did inform him that since no such motion

had been granted he still needed to appear at his August 2014 hearing in Utah.

       In July 2014 Mr. Singh hired Mohammed Arif, whom he never met in person,

to represent him at the hearing. At the time, Mr. Singh “believed [Mr.] Arif to be an

attorney as [Mr. Singh] was informed that [Mr.] Arif frequently visits the detention

center in Eloy, Arizona, and files cases on behalf of the detainees.” Opening Br. at 4.

Mr. Singh subsequently came to believe that Mr. Arif was not admitted to practice

law.

       On the day of the hearing, Mr. Singh told Mr. Arif that he would not be able to

attend the hearing due to a back injury. For unexplained reasons, another individual

actually represented Mr. Singh at the hearing.1 The representative stated that

Mr. Singh was unable to appear due to lower-back pain. He presented a letter from

Mr. Singh’s sponsor stating that Mr. Singh’s back injury prevented him from

       1
        Although Mr. Singh contends that he was not able to reasonably present his
case because he was not present at the hearing, he does not allege that the
representative who appeared on his behalf provided ineffective assistance.
                                            2
traveling by bus to Utah and that he had no other way get there. The representative

also presented an address-change form providing a New York address as Mr. Singh’s

current residence and requested a continuance to file a motion for change of venue.

The immigration judge (IJ) denied the request for a continuance and entered a

removal order in absentia. Mr. Singh did not appeal that order.

       Shortly after Mr. Arif informed Mr. Singh of the result of the hearing,

Mr. Singh made an additional payment to Mr. Arif with the understanding that he

would file a motion to reopen. However, Mr. Arif did not file the motion until

March 2015. Further, he filed it as a pro se motion without any supporting evidence.

       The IJ denied that motion as untimely. See 8 C.F.R. § 1003.23(b)(4)(ii)

(allowing an alien to challenge an in-absentia order within 180 days if “the failure to

appear was because of exceptional circumstances”). The IJ also determined that

Mr. Singh had provided no evidence to support his assertion that his back injury

prevented him from attending the hearing, and therefore he had failed to establish

exceptional circumstances. See 8 U.S.C. § 1229a(e)(1) (“The term ‘exceptional

circumstances’ refers to exceptional circumstances (such as battery or extreme

cruelty to the alien or any child or parent of the alien, serious illness of the alien, or

serious illness or death of the spouse, child, or parent of the alien, but not including

less compelling circumstances) beyond the control of the alien.”). Mr. Singh did not

appeal the denial of that motion.

       In April 2015 Mr. Singh hired new counsel. She filed a second motion to

reopen in June 2015, asserting that Ms. Getachew’s ineffective assistance prevented

                                             3
Mr. Singh from presenting his case at the hearing, that his back injury constituted an

exceptional circumstance preventing him from attending the hearing, that there are no

numerical limits on motions to reopen, that Mr. Singh did not learn about the

deficiencies of his first motion to reopen until April 2015, and that equitable tolling

was appropriate because Mr. Arif fraudulently held himself out to be an attorney.

      The IJ denied the second motion to reopen on the ground that it was

number-barred. See 8 C.F.R. § 1003.23(b)(4)(ii) (allowing an alien to file only one

motion to reopen).

      Mr. Singh appealed to the BIA, arguing that he was entitled to equitable tolling

due to Ms. Getachew’s ineffective assistance and Mr. Arif’s fraudulent conduct.

With respect to Ms. Getachew, he argued that he had complied with the requirements

of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), overruled, Matter of

Compean, 24 I. & N. Dec. 710 (Att’y Gen. 2009), vacated, 25 I. & N. Dec. 1

(Att’y Gen. 2009), by providing an affidavit describing his agreement with

Ms. Getachew, by informing Ms. Getachew of the allegations against her by letter

and allowing her an opportunity to respond (which she did by sending him a refund

check), and by filing a complaint with the appropriate disciplinary authority in

New York. See Infanzon v. Ashcroft, 386 F.3d 1359, 1363 (10th Cir. 2004) (finding

no entitlement to equitable tolling where petitioner failed to satisfy the Lozada

requirements). With respect to Mr. Arif, Mr. Singh argued that he was “a victim of

deceit and fraud by an individual who is involved in the unethical and illegal practice



                                            4
of law,” R. at 24, and that he had no way to file a complaint against Mr. Arif, as

Lozada would typically require, because Mr. Arif was not actually an attorney.

      To support his argument for equitable tolling, Mr. Singh asserted that he did

not learn about Ms. Getachew’s failure to file a motion for change of venue until he

retained new counsel in April 2015 and that he did not learn about Mr. Arif’s deceit

until the IJ denied his first motion to reopen earlier that same month. He argued

further that he had exercised due diligence because he hired Ms. Getachew and

Mr. Arif to represent him and reasonably relied on their representations throughout

the proceedings.

      The BIA concluded that the motion was number-barred, and it declined to

apply equitable tolling based on ineffective assistance. According to the BIA,

Mr. Singh failed to establish that he was prejudiced by the conduct of either

Ms. Getachew or Mr. Arif because his back injury—not ineffective assistance—was

the reason he gave for not appearing at his hearing. The BIA stated that in ruling on

Mr. Singh’s first motion to reopen, the IJ had “permissibly concluded that

[Mr. Singh’s back injury] was not shown to be a sufficient reason for missing the

hearing.” R. at 4; see 8 U.S.C. § 1229a(e)(1) (defining exceptional circumstances).

As a result, the BIA affirmed the IJ’s denial of Mr. Singh’s second motion to reopen.

      Before this court Mr. Singh argues that the BIA abused its discretion when it

denied his second motion to reopen. Specifically, he argues that he was prejudiced

by the ineffective assistance he received from both Ms. Getachew and Mr. Arif: first,

when no motion for change of venue was filed before his hearing; second, when

                                           5
insufficient evidence was presented at the hearing; and third, when the first motion to

reopen was filed late and without supporting evidence. He also appears to argue that

the BIA erred by relying on the IJ’s determination, when it denied his first motion to

reopen, that he failed to establish that his back injury was an exceptional

circumstance justifying his failure to appear at the hearing.

II. Analysis

      We review for abuse of discretion a BIA order denying a motion to reopen.

Galvez Piñeda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005). “The BIA abuses its

discretion when its decision provides no rational explanation, inexplicably departs

from established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Id. (internal quotation marks omitted). But the BIA does

not abuse its discretion when “its rationale is clear, there is no departure from

established policies, and its statements are a correct interpretation of the law.”

Infanzon, 386 F.3d at 1362. We construe Mr. Singh’s pro se pleadings liberally, see

Childs v. Miller, 713 F.3d 1262, 1264 (10th Cir. 2013), but we will not supply

additional factual allegations or construct legal theories on his behalf, see Smith v.

United States, 561 F.3d 1090, 1096 (10th Cir. 2009).

      Generally, an alien may file only one motion to reopen. See 8 C.F.R.

§ 1003.23(b)(4)(ii). It is beyond dispute that in the absence of equitable tolling

Mr. Singh’s second motion to reopen was number-barred. Although Tenth Circuit

precedent establishes that the time limitation on motions to reopen may be equitably

tolled on the basis of ineffective assistance of counsel, see Riley v. INS, 310 F.3d

                                            6
1253, 1258 (10th Cir. 2002), whether the number limitation may also be equitably

tolled remains an open question. We need not resolve this issue today because we

discern no abuse of the BIA’s discretion in declining to apply equitable tolling.

      When an alien files a motion to reopen, “[t]he BIA must examine [his]

situation to determine whether his particular case warrants equitable tolling.” Id. An

alien subject to removal “state[s] a Fifth Amendment violation if he proves that

retained counsel was ineffective and, as a result, [he] was denied a fundamentally fair

proceeding.” Osei v. INS, 305 F.3d 1205, 1208 (10th Cir. 2002). “Ineffective

assistance of counsel in a deportation proceeding is a denial of due process only if the

proceeding was so fundamentally unfair that the alien was prevented from reasonably

presenting his case.” Lozada, 19 I. & N. Dec. at 638. “But, in order to prevail on an

ineffective assistance of counsel claim, the petitioner must show he was prejudiced

by his attorney’s performance.” Veloz-Luvevano v. Lynch, 799 F.3d 1308, 1312

(10th Cir. 2015).

      Mr. Singh failed to demonstrate that he was prejudiced by the allegedly

ineffective assistance he received. Even if Ms. Getachew had filed a motion for

change of venue, “the mere submission of a motion for change of venue does not

excuse an alien’s failure to appear.” Tang v. Ashcroft, 354 F.3d 1192, 1195

(10th Cir. 2003) (internal quotation marks omitted). Mr. Singh did not show what

evidence he would have presented in the motion for change of venue or at the

hearing, had he been present. Nor has he presented any evidence he would have

included with his first motion to reopen that would have created a reasonable

                                           7
likelihood that the outcome would have been different. See United States v.

Aguirre-Tello, 353 F.3d 1199, 1209 (10th Cir. 2004) (adopting the “reasonable

likelihood” standard for demonstrating prejudice sufficient to render a deportation

proceeding fundamentally unfair). His contention that Mr. Arif should have

submitted a doctor’s note and other evidence Mr. Singh acquired after the IJ denied

his first motion to reopen is without merit. Under these circumstances, the BIA did

not abuse its discretion by declining to apply equitable tolling.

      To the extent Mr. Singh seeks to challenge the IJ’s determination that his back

injury did not constitute an exceptional circumstance, he failed to appeal this issue to

the BIA after either his hearing or the denial of his first motion to reopen; therefore,

he did not exhaust his administrative remedies, and we lack jurisdiction to consider

the matter. See Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991)

(“Judicial review does not extend to points the alien could have made before the

Board but did not.”).

III. Conclusion

      The petition for review is denied.


                                            Entered for the Court


                                            Monroe G. McKay
                                            Circuit Judge




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