         10-423-ag
         Singh v. Holder
                                                                                       BIA
                                                                               A070 657 377
                                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 13th day of September, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _______________________________________
12
13       BILLU SINGH,
14                Petitioner,
15
16                         v.                                   10-423-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Viney K. Gupta, Orange, California.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Richard M. Evans, Assistant
28                                       Director; Brooke M. Maurer, Trial
29                                       Attorney, Office of Immigration
30                                       Litigation, Civil Division, United
31                                       States Department of Justice,
32                                       Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Billu Singh, a native and citizen of India, seeks

 6   review of a January 22, 2010, order of the BIA denying his

 7   motion to reopen his removal proceedings.     In re Billu

 8   Singh, No. A070 657 377 (B.I.A. Jan. 22, 2010).     We assume

 9   the parties’ familiarity with the underlying facts and

10   procedural history of the case.

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

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

13   (2d Cir. 2006).     An alien who has been ordered removed may

14   file one motion to reopen, but must do so within 90 days of

15   the final administrative decision.    8 U.S.C. § 1229a(c)(7).

16   Here, the BIA did not abuse its discretion by denying

17   Singh’s motion to reopen as time and number-barred, as it

18   was his second motion to reopen, filed more than five years

19   after his final order of removal.     See id.; 8 C.F.R.

20   § 1003.2(c)(2).     However, the time and number limitations do

21   not apply to a motion to reopen if it is based on “changed

22   country conditions arising in the country of nationality.”


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 1   8 U.S.C. § 1229a(c)(7); see 8 C.F.R. § 1003.2(c)(3)(ii).        In

 2   this case, because Singh did not present any evidence of

 3   changed country conditions in India, the BIA did not abuse

 4   its discretion in finding that he failed to demonstrate an

 5   exception to the time and number limitations.       See 8 U.S.C.

 6   § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(3)(ii).

 7       Although Singh claims that his removal order was

 8   defective because he is actually Amarjit Singh Dhillon and

 9   entered the United States on a visa, substantial evidence

10   supports the BIA’s refusal to credit that assertion given

11   Singh’s original asylum application, his testimony, and his

12   submission of a birth certificate in the name Billu Singh.

13       Singh also asserts that the BIA erred in declining to

14   toll the time for filing due to ineffective assistance of

15   counsel.   In certain circumstances, an alien may toll the

16   time period for filing a motion to reopen by demonstrating

17   ineffective legal assistance.       See Rabiu v. INS, 41 F.3d

18   879, 882 (2d Cir. 1994).   In order to equitably toll the

19   time period, in addition to complying with the procedural

20   requirements for an ineffective assistance of counsel claim,

21   an alien must show prejudice as a result of the ineffective

22   assistance, and must have exercised due diligence in


                                     3
 1   pursuing the claim.   See Jian Hua Wang v. BIA, 508 F.3d 710,

 2   715 (2d Cir. 2007).   Because Singh did not provide any

 3   evidence to show that he had complied with the procedural

 4   requirements enumerated in Matter of Lozada, 19 I. & N. Dec.

 5   637 (BIA 1988), and did not present any claims of

 6   ineffective assistance that could not have been presented

 7   when he filed his first motion to reopen, the BIA did not

 8   abuse its discretion in finding that Singh failed to

 9   exercise the necessary due diligence.   See Jian Hua Wang,

10   508 F.3d at 715.

11       Singh argues that his due process rights were violated

12   by the BIA’s failure to correct his defective removal order,

13   and to reopen proceedings so that he could claim relief as

14   the battered spouse of a United States citizen.     However,

15   because the BIA did not abuse its discretion in either

16   respect, Singh’s due process claim is without merit.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


                                   4
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




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