10-350-ag
Singh v. Holder
                                                                                BIA
                                                                        A072 409 681
                   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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19th day of January, two thousand twelve.

PRESENT:
         GUIDO CALABRESI,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
              Circuit Judges.
_______________________________________

BARIJINDER SINGH,
         Petitioner,

                  v.                                    10-350-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
______________________________________
FOR PETITIONER:                Martin Avila Robles, Los Angeles,
                               California.

FOR RESPONDENT:                Tony West, Assistant Attorney
                               General; John S. Hogan, Assistant
                               Director; Michael C. Heyse, Trial
                               Attorney, Office of Immigration
                               Litigation, United States Department
                               of Justice, Washington D.C.
     UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

     Petitioner Barijinder Singh, a native and citizen of

India, seeks review of the December 30, 2009, order of the

BIA denying his motion to reopen his removal proceedings.

In re Barijinder Singh, No. A072 409 681 (B.I.A. Dec. 30,

2009).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.    We

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

discretion.    See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

2006).

I.   Time and Number Bars

     Singh’s motion to reopen was indisputably untimely and

number-barred as it was his fourth motion to reopen and he

filed it more than thirteen years after he was ordered

deported and two years after the BIA’s last decision in his

case.    See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

§ 1003.2(c)(2).    Contrary to Singh’s argument, the

regulation accounts for cases that pre-date its enactment by

requiring motions to reopen to be filed either within ninety


                               2
days “or on or before September 30, 1996, whichever is

later.”   8 C.F.R. § 1003.2(c)(2).      Singh’s motion to reopen

clearly does not meet that test.

II. Changed Country Conditions

    There are no time limitations on motions to reopen if

the alien establishes materially “changed country conditions

arising in the country of nationality.”       8 U.S.C.

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

Singh submitted, with his motion to reopen, U.S. State

Department Reports on Human Rights Practices in India, along

with other documentary evidence, regarding abuses by the

Indian and Punjab police and security forces related to the

repression of Sikh militancy, including torture,

disappearances, and extra-judicial killings during the

period between 1993 and 1995.       Singh also submitted

documentary evidence from the period 2004 to 2009 indicating

that Sikh activists and persons suspected of aiding

terrorists remain subject to torture, disappearance, and

extra-judicial killing.   The BIA found that while this

documentary evidence “reflect[ed] some political changes in

India,” it did “not establish any change with regard to the

treatment of Sikh militants or persons suspected of aiding


                                3
terrorists.”

    Singh’s challenges to the BIA’s country conditions

finding are unpersuasive.   First, the BIA’s review of the

documentary evidence, while succinct, was sufficient to

demonstrate that it had “given reasoned consideration to the

petition, and made adequate findings.”    Gao v. Mukasey, 508

F.3d 86, 87 (2d Cir. 2007) (internal quotation marks

omitted); see also Wang v. BIA, 437 F.3d 270, 275 (2d Cir.

2006) (rejecting argument that the BIA must “expressly parse

or refute on the record each individual argument or piece of

evidence offered by the petitioner” (internal quotation

marks omitted)).   Second, we reject Singh’s objection to the

use of country conditions at the time of his 1995 hearing as

a baseline, because without such a baseline it would be

impossible to determine whether country conditions had in

fact changed.   See 8 C.F.R. § 1003.2(c)(3)(ii) (permitting

motions to reopen “based on changed circumstances arising in

the country of nationality” (emphasis added)).

III. Convention Against Torture (“CAT”)

    Because Singh’s deportation order became final in 1996,

see 8 C.F.R. § 1003.39, and he did not file the present

motion to reopen until 2009, his motion to reopen for the

purposes of pursuing CAT relief was untimely.    See 8 C.F.R.

                              4
§ 208.18(b)(2)(i) (requiring an alien with an order of

deportation that became final prior to March 22, 1999 to

file a motion to reopen to pursue CAT relief before June 21,

1999).    Thus, Singh’s argument that he is entitled to

reopening to pursue CAT relief because such relief was not

available at the time of his initial hearing lacks merit.

IV. Adjustment of Status

   To the extent Singh challenges the BIA’s decision not to

reopen his case sua sponte to permit him to adjust his

status, we lack jurisdiction to review that decision, as sua

sponte reopening under 8 C.F.R. § 1003.2(a) is “entirely

discretionary.”    Ali, 448 F.3d at 518.

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, any pending motion

for a stay of removal in this petition is DISMISSED as moot.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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