         11-952-ag
         Singh v. Holder
                                                                                       BIA
                                                                               A076 726 584
                            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 4th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                BARRINGTON D. PARKER,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _______________________________________
12
13       TARSEM SINGH,
14                Petitioner,
15
16                         v.                                   11-952-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Jaspreet Singh, Jackson Heights, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina, Jr.,
28                                     Assistant Director; Bernard A.
29                                     Joseph, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

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

 6   review of a February 24, 2011 order of the BIA denying his

 7   motion to reopen.     In re Tarsem Singh, No. A076 726 584(BIA

 8   Feb. 24, 2011).     We assume the parties’ familiarity with the

 9   underlying facts and procedural history of the case.

10       The BIA’s denial of Singh’s motion to reopen as

11   untimely was not an abuse of discretion.     See Debeatham v.

12   Holder, 602 F.3d 481, 484 (2d Cir. 2010) (per curiam).        A

13   motion to reopen must generally be filed no later than 90

14   days after the date on which the final administrative

15   decision was rendered in the proceedings sought to be

16   reopened.    8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

17   § 1003.2(c)(2).     Singh’s 2010 motion was untimely as the

18   final administrative decision was issued in 2007.     However,

19   the time limitation does not apply to a motion to reopen if

20   it “is based on changed country conditions arising in the

21   country of nationality or the country to which removal has

22   been ordered, if such evidence is material and was not

23   available and could not have been discovered or presented at

                                     2
 1   the previous proceeding.”   8 U.S.C. § 1229a(c)(7)(C)(ii).

 2   Singh contends that he submitted material evidence of

 3   changed country conditions to the BIA in the form of

 4   affidavits and country reports.    Specifically, he claims

 5   that increased human rights abuses by police in India

 6   support his claim that he would face persecution based on

 7   his involvement in the Akali Dal Mann (“ADM”) political

 8   party.

 9       In declining to credit the evidence Singh submitted in

10   support of his motion to reopen, the BIA properly relied on

11   the adverse credibility finding made in Singh's underlying

12   removal proceeding, which was not challenged before this

13   Court and has not been challenged in the present proceeding.

14   See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005)

15   (concluding that the BIA acted within its discretion where

16   it “clearly explained that the evidence submitted by

17   petitioner in support of her motion was not ‘material’

18   because it did not rebut the adverse credibility finding

19   that provided the basis for the IJ’s denial of petitioner’s

20   underlying asylum application”).    Moreover, on review of the

21   denial of a motion to reopen, this Court is “precluded from

22   passing on the merits” of the underlying adverse credibility


                                   3
 1   finding.     Kaur, 413 F.3d at 233 (internal quotation marks

 2   omitted).

 3       Singh’s reliance on Paul v. Gonzales, 444 F.3d 148 (2d

 4   Cir. 2006), is misplaced because the factual predicate of

 5   Singh’s motion to reopen is not independent of the testimony

 6   that was found incredible in the underlying proceeding.        See

 7   Paul, 444 F.3d at 154 (explaining that “an applicant may

 8   prevail on a theory of future persecution despite an IJ’s

 9   adverse credibility ruling as to past persecution, so long

10   as the factual predicate of the applicant’s claim of future

11   persecution is independent of the testimony that the IJ

12   found not to be credible” (emphasis in original)).     Indeed,

13   the motion to reopen is based on the same claim underlying

14   Singh’s asylum application: that the Indian police had

15   previously targeted him and will target him in the future

16   because of his membership in ADM.     In its 2007 decision, the

17   BIA found that Singh had failed to establish both past

18   persecution and a well-founded fear of future persecution

19   because his testimony that he was a member of ADM was not

20   credible.

21       For the foregoing reasons, the petition for review is

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


                                     4
 1   removal that the Court previously granted in this petition

 2   is VACATED, and Singh’s pending motion for a stay of removal

 3   in this petition is DENIED as moot.    Any pending request for

 4   oral argument in this petition is DENIED in accordance with

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

 6   Circuit Local Rule 34.1(b).

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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