                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-2260
                                     ____________

                                   SHASRIE SINGH,
                                                Petitioner,
                                         v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                             Respondent
                     __________________________________

                          On a Petition For Review of an Order
                           of the Board of Immigration Appeals
                               (Agency No. A079-117-515)
                          Immigration Judge: Frederic G. Leeds
                        __________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 14, 2011
               Before: RENDELL, FUENTES and WEIS, Circuit Judges

                           (Opinion filed November 18, 2011)
                                     ____________

                                       OPINION
                                     ____________

PER CURIAM.

              Shasrie Singh (“Singh”) petitions for review of the Board of Immigration

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for

review.
              Singh, a native and citizen of Guyana, is removable under Immigration and

Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who

entered without being admitted or paroled. The Immigration Judge granted his

application for voluntary departure, and set his departure date for March 14, 2002. In the

alternative, the IJ ordered his removal to Guyana. The parties waived an appeal to the

Board of Immigration Appeals. Singh failed to depart the United States, and, on April 2,

2009, he filed a motion to reopen proceedings in Immigration Court in order to seek

cancellation of removal. He conceded that his motion was filed beyond the filing 90-day

deadline, but he argued that the deadline should be tolled because he had received

ineffective assistance of counsel during his 2001 removal proceedings.

              On April 21, 2009, the IJ denied the motion to reopen. After reviewing the

record of proceedings, including the audiotape of the November 14, 2001 hearing, the IJ

determined that the motion was untimely because Singh filed it more than seven years

late, see 8 C.F.R. § 1003.23(b)(1). The IJ further determined that, with respect to his

claim for equitable tolling of the filing deadline, Singh failed to comply with the

evidentiary requirements of Matter of Compean, 24 I. & N. Dec. 710 (A.G. January 7,

2009) (“Compean I”), and failed to establish deficient performance by his counsel. In

addition, Singh had not made out a prima facie case for cancellation of removal.

              Singh appealed to the Board and submitted additional exhibits with his

appeal. During the pendency of the appeal, the Attorney General reinstated the

previously established standards for adjudicating motions to reopen based on a claim of

ineffective assistance of counsel, see Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

                                             2
The Board, on January 8, 2010, remanded Singh’s case to the IJ for reconsideration of his

ineffectiveness claim under the newly-reinstated standards. On remand, the IJ gave

Singh an opportunity to submit new arguments and additional evidence in support of his

untimely motion to reopen. Singh submitted new documents in support of cancellation of

removal, and raised new claims for adjustment of status and asylum. Singh also argued

that his marriage was bona fide.

              On April 1, 2010, the IJ again denied Singh’s motion to reopen as untimely

filed, and again concluded that Singh’s ineffectiveness claim was an insufficient basis to

toll the filing deadline for a motion to reopen. The IJ reasoned that Singh did not comply

with Lozada’s procedural requirements, and he did not show a reasonable likelihood that

the outcome of his removal proceedings would have been different had prior counsel’s

representation not been deficient, see Fadiga v. Att'y Gen. of U.S., 488 F.3d 142, 159 (3d

Cir. 2007). Moreover, Singh was statutorily ineligible to adjust his status because he had

failed to depart voluntarily after agreeing to do so. The IJ noted that the consequences

for failing to depart, including with respect to adjustment of status, were explained to

Singh at his hearing, and he had indicated that he understood those consequences. The IJ

also found that Singh failed to show by clear and convincing evidence that his marriage

was bona fide, see 8 C.F.R. § 204.2(a)(1)(iii)(B). With respect to his cancellation of

removal claim, the IJ found that, even if his motion to reopen was not time-barred, Singh

failed to make a prima facie showing that he had ten years’ physical presence in the

United States, or a qualifying relative who would suffer exceptional or extremely unusual

hardship if he was removed, see Matter of Monreal, 23 I. & N. Dec. 56 (BIA 2001).

                                             3
With respect to his new claim for asylum, the IJ considered whether Singh established

that reopening was warranted under the statutory exception to the time limit for filing

motions to reopen to apply for asylum, but determined that the new evidence Singh

submitted with his motion to reopen did not show changed country conditions in Guyana

that materially affected his eligibility for asylum.

              Singh appealed to the Board, and, on August 5, 2010, the Board dismissed

the appeal. The Board emphasized that the IJ correctly found that Singh’s motion to

reopen was untimely, and that he had failed to establish ineffective assistance of counsel

sufficient to toll the filing deadline. The Board also emphasized that Singh did not

establish that he was eligible for cancellation of removal, explaining that he could not

meet the physical presence requirement or the exceptional and extremely unusual

hardship requirement. With respect to asylum and withholding of removal, the Board

reasoned that Singh did not establish a change in country conditions sufficient to excuse

the untimeliness of his motion to reopen. Last, the Board agreed with the IJ that Singh

was barred from adjusting his status, because he had violated his voluntary departure

order. Thus, his argument regarding the bona fides of his marriage was irrelevant.

              Singh timely petitioned for review. We denied that petition, see Singh v.

Att’y Gen. of the U.S., 430 Fed. Appx. 157 (3d Cir. 2011), holding that Singh’s motion to

reopen was untimely filed, and that the agency’s determination that he was not entitled to

equitable tolling of the deadline because he failed to establish ineffective assistance of

counsel, see Mahmood v. Gonzales, 427 F.3d 248, 252–53 (3d Cir. 2005), was not an

abuse of its discretion. Singh, 430 Fed. Appx. at 160. We went on to observe that,

                                               4
because the motion was time-barred, the merits of Singh’s adjustment of status argument

could not be addressed, but, in any event, Singh was statutorily ineligible to adjust his

status for a period of 10 years under 8 U.S.C. § 1229c(d)(1)(B), or until March, 2012.

Moreover, although his wife’s immediate relative petition had been approved, his

adjustment of status application had been denied by the United States Citizenship and

Immigration Service (“USCIS”) on February 23, 2011. Singh, 430 Fed. Appx at 161.

Last, we held that Singh did not establish what country conditions were in Guyana at the

time of his November, 2001 hearing, how they had worsened since that time, or how the

purported change was material to his claim for asylum, and thus the IJ did not abuse his

discretion in determining that the exception to the filing deadline for changed country

conditions did not apply. See id.

              At issue in the instant petition for review, on November 15, 2010, Singh

filed a motion to reconsider seeking to submit new evidence of the ineffectiveness of his

three prior attorneys, Brian Tucker, Stephen Rockmacher, and Andre Sobolevsky. He

alleged that the delay in filing the motion to reconsider was caused by his having to

replace documents that attorney Sobolevsky lost. He attached to the motion a letter

Sobolevsky failed to submit previously, which revealed that an individual who helped

Singh migrate to the United States now wants to kill him because of an outstanding debt.

This man, whom Singh did not identify, represents a group that the government of

Guyana cannot or will not control, according to Singh. Once again, Singh also stressed

his equities and the hardship that would befall his family should he be deported, and he

argued that he was eligible to adjust his status.

                                              5
              In a decision dated April 15, 2011, the Board denied the motion. The

Board determined that, construed as a motion for reconsideration, it was untimely filed,

and, construed as a motion to reopen, it was both untimely and number-barred. The

Board reasoned that Singh once again did not offer any evidence of compliance with

Lozada’s notice and bar complaint requirements, nor did he offer an explanation for his

non-compliance. Thus, his ineffectiveness claim was an insufficient basis to toll the

filing deadlines for both motions, or to ease the number restriction for motions to reopen.

The Board also declined to sua sponte reopen proceedings, 8 C.F.R. § 1003.2(a), because

Singh’s new marriage and family was not an exceptional or unusual situation warranting

sua sponte reopening under Matter of J-J-, 21 I. & N. Dec. 976 (BIA 1997). With respect

to his claim for asylum and withholding of removal, the Board also determined that Singh

could not benefit from the exception to timeliness for changed country conditions

because his evidence was insufficient, immaterial, and also did not establish a prima facie

case for asylum, see Matter of S-Y-G-, 24 I. & N. Dec. 247, 258 (BIA 2007). In the

margin, the Board noted that the harm Singh feared in Guyana did not appear to be

motivated by a protected ground and thus would not establish a prima facie case for

asylum and withholding of removal. Moreover, he offered no evidence to support a

claim that he was more likely than not to be tortured with government acquiescence, 8

C.F.R. § 1208.18(a)(1).

              Singh timely petitions for review. We have jurisdiction under 8 U.S.C. §

1252(a)(1), (b)(1) to review the Board’s decision denying the motion to reopen.



                                             6
              We will deny the petition for review. We review the denial of a motion to

reopen for an abuse of discretion. Immigration & Naturalization Serv. v. Doherty, 502

U.S. 314, 323 (1992). Under this deferential standard, we will reverse the Board’s

decision only if it is arbitrary, irrational, or contrary to law. Sevoian v. Ashcroft, 290

F.3d 166, 174 (3d Cir. 2002). The Board did not abuse its discretion in denying the

motion, whether construed as one for reconsideration or one to reopen, as untimely filed.

The motion had to have been filed within 30 days of August 5, 2010 to be timely as a

motion to reconsider, see 8 C.F.R. § 1003.2(b)(2), or within 90 days of November 14,

2001 to be timely as a motion to reopen, see id. at § 1003.2(c)(2), and it was not.

              The Board also did not abuse its discretion in determining that Singh’s

latest ineffectiveness claim was an insufficient basis to toll the filing deadlines for both

motions. His latest claim suffers from the same deficiencies that we noted in his prior

case, Singh, 430 Fed. Appx. at 160-61. Again, there is no evidence that he complied with

the notice and bar complaint requirements of Lozada, and his reasons for not doing so are

weak, see Singh, 430 Fed. Appx. at 161. Further, the Board’s decision not to sua sponte

reopen proceedings is unreviewable. Cruz v. Att’y Gen. of U.S., 452 F.3d 240, 249 (3d

Cir. 2006); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).

              Singh’s evidence that an individual in Guyana has threatened to do him

harm is not evidence material to a claim of asylum, and thus does not provide a basis for

applying the exception to timeliness, 8 C.F.R. § 1003.2(c)(3)(ii) (time and number limits

do not apply to motions to reopen “[t]o apply or reapply for asylum or withholding of

deportation based on changed circumstances arising in the country of nationality or in the

                                              7
country to which deportation has been ordered, if such evidence is material and was not

available and could not have been discovered or presented at the previous hearing”). An

asylum claimant must show that he is a person who is unable to return to his home

country because of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion, 8 C.F.R. §§ 1208.13(b)(1). Singh has never

established that he belongs to any protected category. He claims only that the person

who helped him migrate to the United States now wishes to harm him over an unpaid

debt, but an alien who fears personal retribution over an unpaid debt does not qualify for

asylum. Cf. Al-Fara v. Gonzales, 404 F.3d 733, 741 (3d Cir. 2005) (fear of retribution

over purely personal matter does not support claim for asylum). In the alternative, the

Board did not act arbitrarily in determining that Singh failed to establish prima facie

eligibility for asylum, withholding of removal, or protection under the Convention

Against Torture, because Singh offered no evidence that he would be harmed on account

of a protected ground.

              Last, to the extent Singh has argued in his Informal Brief that he is eligible

for adjustment of status and/or cancellation of removal, we note that the claims are barred

from consideration because his motion to reconsider/reopen was untimely, and the Board

declined to reopen the untimely motion sua sponte to consider the applications.

              For the foregoing reasons, we will deny the petition for review.




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