                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2006

Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2686




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Singh v. Atty Gen USA" (2006). 2006 Decisions. Paper 1262.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1262


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                     No. 05-2686



                                  KULVIR SINGH,
                                            Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                      Respondent



                          Petition for Review of an Order
                        of the Board of Immigration Appeals
                              (INS No. A75-309-613)
                    Immigration Judge: Honorable Henry S. Dogin


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 17, 2006


             Before: SLOVITER, AMBRO and MICHEL*, Circuit Judges

                                (Filed: April 17, 2006)



                                      OPINION




   *
   Hon. Paul R. Michel, Chief Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.
SLOVITER, Circuit Judge.

        Petitioner Kulvir Singh appeals the denial by the Board of Immigration Appeals

(“BIA”) of his third motion to reopen proceedings. The BIA denied the motion as

numerically barred and found that Singh had failed to establish “changed circumstances”

in his home country affecting his eligibility for asylum.

        Singh filed the motion that is the subject of this appeal on March 17, 2005, and the

BIA denied it on April 27, 2005. He filed a timely petition for review on May 25, 2005.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We conclude that the BIA did not

abuse its discretion in denying Singh’s motion to reopen as numerically barred.

Accordingly, we deny the petition for review.

                                              I.

        We present only the facts essential to this appeal because we write primarily for

the parties. Kulvir Singh is a twenty-nine-year-old native of the Punjab region of India.

He entered the United States from Canada in April of 1996. Singh was served with a

Notice to Appear on July 14, 1999, charging him with removability for illegal entry. See

8 U.S.C. § 1182(a)(6)(A)(i). He conceded removability and filed an application for

asylum, 8 U.S.C. § 1158, withholding of removal, 8 U.S.C. § 1231(b)(3), and relief under

Article 3 of the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c). After a

hearing, an immigration judge (“IJ”) denied all of Singh’s claims for relief on April 13,

2000.

        Singh’s asylum claim was based on his alleged membership in the All India Sikh

                                              2
Student Federation (“AISSF”), an organization that espouses a separate state for Sikhs,

who are a religious minority in India. Singh was reportedly arrested and jailed for twenty

days after making a speech at a rally in 1995. He testified at his asylum hearing that he

was beaten and tortured by Indian police while in jail, and that police continued to harrass

his family and threaten him after his release. As a result, he sought shelter at the home of

a relative in another city, and eventually left India for the United States, where he

believed he would be safe.

       Citing Singh’s failure to provide any documentary evidence of his arrest or

membership in AISSF, and only questionable documentary evidence regarding the

remainder of his story, the IJ found that Singh had fabricated most of his claims. He

denied Singh’s petition for asylum, withholding of removal, and relief under the CAT on

April 13, 2000.

       The BIA affirmed the denial of relief on March 26, 2003, and Singh filed a motion

to reopen on May 20, 2003, alleging changed country conditions and that an I-130 visa

application (Immediate Relative Petition) had been filed on his behalf due to his marriage

to an American citizen. The BIA denied Singh’s motion to reopen on July 30, 2003,

finding insufficient evidence to warrant reopening. Singh filed a second motion to reopen

on April 16, 2004, which the BIA denied on May 17, 2004, as numerically barred under 8

C.F.R. § 1003.2(c)(2).

       Singh filed the present motion to reopen on March 17, 2005. In this motion, he

reiterated his earlier claims that he would be persecuted if he were returned to India. He

                                              3
submitted two affidavits in support of his motion, one from his father, and one from a

neighbor. Both affidavits stated that the police were looking for Singh, and that he would

be a target of harassment and arrest on the basis of his political beliefs if he returned to

India. Singh also noted that he had married an American citizen who had given birth to

their child, and that he was therefore “eligible to adjust status in the United States.” App.

at 7. He attached a copy of the receipt for the I-130 visa petition his wife had filed on his

behalf and a copy of his child’s birth certificate.

       The BIA denied this motion on April 27, 2005, in a per curiam order. The BIA

noted that aliens are limited to one motion to reopen and found that Singh did not qualify

for any exception to this rule because he had failed to establish changed conditions in

India that would merit reopening.

                                              II.

       The only issue presented by this petition is whether the BIA abused its discretion

in denying Singh’s third motion to reopen. We review a decision of the BIA to deny a

motion to reopen proceedings for abuse of discretion. Mahmood v. Gonzales, 427 F.3d

248, 250 (3d Cir. 2005). Such a decision is not overturned unless arbitrary, irrational, or

contrary to law. Caushi v. Attorney General, 436 F.3d 220, 226 (3d Cir. 2006).

       An alien may file a motion to reopen proceedings within 90 days of entry of a final

decision of the BIA. See 8 C.F.R. § 1003.2(c)(2). If the alien wishes to file a second or

late motion to reopen, he may do so based on “changed circumstances arising . . . in the

country to which deportation has been ordered, if such evidence is material and was not

                                               4
available and could not have been discovered or presented at the previous hearing.” §

1003.2(c)(3)(ii). The BIA concluded that Singh had failed to demonstrate “changed

circumstances” in India affecting his eligibility for asylum. Accordingly, it denied his

motion as numerically barred under 8 C.F.R. § 1003.2(c)(2).

       Singh argues that the BIA abused its discretion in denying his motion to reopen

because the BIA failed to discuss any of the evidence he presented in support of his

motion. He argues that he is entitled to remand because these deficiencies make it

impossible for this Court to conduct a meaningful review and because he has established

a prima facie case for asylum.

       This Court may vacate and remand a decision of the BIA when deficiencies in the

decision make it impossible to conduct a meaningful review. See Kayembe v. Ashcroft,

334 F.3d 231, 238 (3d Cir. 2003). Singh supported his third motion to reopen with

affidavits from his father and a neighbor. The substance of these affidavits does not differ

materially from what Singh presented at his original asylum hearing, during which he

presented affidavits from his father, a sarpanch (village elder), and a friend. There is no

indication that any of the information presented in these affidavits was unavailable at the

time of the asylum hearing. Accordingly, the summary treatment the BIA gave to this

evidence does not constitute an abuse of discretion. The BIA has not ignored material

evidence favorable to Singh’s claim of changed conditions because Singh has simply

failed to present any evidence of changed conditions. Cf. Tipu v. INS, 20 F.3d 580,

583–84 (3d Cir. 1994) (vacating BIA’s denial of § 212(c) waiver for failure to give

                                              5
adequate consideration to important favorable evidence).

       Similarly, evidence of Singh’s marriage to an American citizen and the birth of his

child, which was already presented to the BIA in Singh’s first motion to reopen, was not

relevant to the merits of his third motion to reopen. Because Singh’s motion was

numerically barred, he did not meet the requirements for a motion to reopen to allow

pursuit of adjustment of status. See In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256

(BIA 2002) (BIA has discretion to grant a motion to reopen to provide an alien an

opportunity to pursue an application for adjustment if, among other factors, the motion is

not numerically barred); Bhiski v. Ashcroft, 373 F.3d 363, 371–72 (3d Cir. 2004)

(applying Velarde-Pacheco to uphold BIA’s denial of alien’s motion to remand and stay

removal for adjustment of status due to marriage). Accordingly, the BIA did not abuse its

discretion by failing to specifically note this evidence.

       Singh devotes considerable space in his brief to reviewing the strength of his

asylum claim. Petitioner’s Br. at 16–26. But this evidence is not relevant to the

determination of whether circumstances in India have changed. Because Singh has

presented no evidence of changed conditions in India that was unavailable to him at the

time of his asylum hearing, the BIA did not abuse its discretion in declining to reopen

proceedings. See 8 C.F.R. § 1003.2(a).

                                             III.

       For the foregoing reasons, the petition for review is denied.

_____________________

                                              6
