         09-4769-ag
         Singh v. Holder
                                                                                       BIA
                                                                               A095 585 200
                                                                               A095 585 201
                                                                               A095 585 202
                            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 17 th day of September, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                   Circuit Judges.
11       _______________________________________
12
13       SATNAM SINGH, SUKHWNDER KAUR,
14       HARSIMRAN KAUR,
15                Petitioners,
16
17                         v.                                   09-4769-ag
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ____________________________________________________________
23       _______________________________________
24
25       FOR PETITIONERS:              Jaspreet Singh, Jackson Heights, New
26                                     York.
27
28       FOR RESPONDENT:               Tony West, Assistant Attorney
29                                     General; Aviva L. Poczter, Senior
30                                     Litigation Counsel; Nehal H. Kamani,
31                                     Trial Attorney, Office of
32                                     Immigration Litigation, United
1                              States Department of Justice,
2                              Washington, D.C.

3        UPON DUE CONSIDERATION of this petition for review of a

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

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

6    review is DENIED.

7        Satnam Singh, a native and citizen of India, seeks

8    review of an October 19, 2009, order of the BIA denying the

9    second motion to reopen he filed after being found not

10   credible and ordered removed. 1     In re Satnam Singh,

11   Sukhwnder Kaur, Harsimran Kaur, Nos. A095 585 200/201/202

12   (B.I.A. Oct. 19, 2009).     We assume the parties’ familiarity

13   with the underlying facts and procedural history of this

14   case.   We note that this is the third time this case is

15   before us.   In 2007, we denied Singh's petition for review

16   of the underlying removal order, finding that the agency's

17   adverse credibility determination was supported by

18   substantial evidence.     See Singh v. Keisler, 253 Fed. App'x

19   56, 58 (2d Cir. 2007).     In 2008, we denied Singh's petition

20   for review of the agency's order denying his first untimely



             1
            Singh’s wife, Sukhwnder Kaur, and daughter,
       Harsimran Kaur, are listed as beneficiaries on Singh’s
       asylum application. Because Singh is the lead
       petitioner, this Summary Order will refer to him
       throughout.

                                     2
1    motion to reopen.     See Singh v. Mukasey, 295 Fed. App'x 402,

2    404 (2d Cir. 2008).

3        We review the BIA’s denial of Singh’s second motion to

4    reopen for abuse of discretion.     Kaur v. BIA, 413 F.3d 232,

5    233 (2d Cir. 2005) (per curiam).     An alien may only file one

6    motion to reopen and must do so within 90 days of the final

7    administrative decision.     8 U.S.C. § 1229a(c)(7); 8 C.F.R.

8    § 1003.2(c)(2).     However, there is no time or numerical

9    limitation if the alien establishes materially “changed

10   country conditions arising in the country of nationality.”

11   8 U.S.C. § 1229a(c)(7) (C)(ii); see also 8 C.F.R.

12   § 1003.2(c)(3)(ii).     Here, Singh’s second motion to reopen

13   was indisputably untimely and number-barred, and the BIA did

14   not abuse its discretion in denying it.

15       The BIA did not abuse its discretion in finding that

16   Singh’s new evidence failed to overcome the IJ’s previous

17   adverse credibility determination.     See Singh v. Keisler,

18   253 Fed. App'x at 58; see also Qin Wen Zheng v. Gonzales,

19   500 F.3d 143, 147-48 (2d Cir. 2007) (finding that the BIA

20   did not abuse its discretion in denying a motion to reopen

21   supported by allegedly unavailable evidence regarding

22   changed country conditions where there had been a previous

23   adverse credibility finding in the underlying asylum

                                     3
1    hearing) .   Indeed, despite Singh’s contention to the

2    contrary, his second motion to reopen (like the first) was

3    based on the same factual predicate as the claim on which

4    the IJ previously found him not credible.       Cf. Paul v.

5    Gonzales, 444 F.3d 148, 154 (2d Cir. 2006) (finding that,

6    notwithstanding an adverse credibility ruling with respect

7    to past persecution, an applicant can prevail on a theory of

8    future persecution, “so long as the factual predicate of the

9    applicant’s claim of future persecution is independent of

10   the testimony that the IJ found not to be credible”

11   (emphasis in original)).    Additionally, substantial evidence

12   supports the BIA’s determination that Singh’s new evidence

13   did not demonstrate changed country conditions since the

14   time of his merits hearing.    See 8 U.S.C. §

15   1229a(c)(7)(C)(ii) (requiring an applicant to demonstrate

16   changed country conditions between the time of his original

17   merits hearing and his motion to reopen) ; Jian Hui Shao v.

18   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).       Accordingly, the

19   BIA did not abuse its discretion in denying reopening, as

20   Singh failed to establish an exception to the timing and

21   numerical limitations on motions to reopen.




                                    4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
12
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