         09-2852-ag
         Singh v. Holder
                                                                                       BIA
                                                                               A075 253 532
                            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 5th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                ROSEMARY S. POOLER,
10                DEBRA ANN LIVINGSTON,
11                       Circuit Judges.
12       _______________________________________
13
14       KRISHAN SINGH
15                Petitioner,
16
17                         v.                                   09-2852-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Viney K. Gupta, Orange, CA.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; David V. Bernal, Assistant
28                                     Director; Yedidya Cohen, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, Civil Division, 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 DISMISSED, in part, and DENIED, in part.

 5       Petitioner Krishan Singh, a native and citizen of

 6   India, seeks review of a June 19, 2009, order of the BIA

 7   denying his motion to reopen.       In re Krishan Singh, No. A075

 8   253 532 (B.I.A. Jun. 19, 2009).      We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   in this case.

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

12   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).   Because Singh filed this, his fourth motion

14   before the agency, more than five years after the BIA’s

15   final order of removal, he was required to show an exemption

16   from the time and number limitations on motions to reopen.

17   See 8 U.S.C. § 1229a(7)(C).

18       Singh argues that the BIA erred in failing to equitably

19   toll the time limits on his motion to reopen on the basis

20   that he received ineffective assistance of counsel.      Because

21   Singh did not raise the issue of ineffective assistance of

22   counsel in his 2009 motion to the BIA (the denial of which

23   is the subject of this petition for review), we are unable


                                     2
 1   to address it and this petition is untimely for review of

 2   the BIA’s denial the last motion to reopen in which he

 3   raised the issue.    See Stone v. INS, 514 U.S. 386, 405

 4   (1995) (explaining that courts should treat each petition

 5   for review as challenging only the BIA decision from which

 6   it was timely filed); Garcia-Martinez v. Dep’t of Homeland

 7   Security, 448 F.3d 511, 513-14 (2d Cir. 2006) (providing

 8   that, where a petitioner fails to raise an ineffective

 9   assistance of counsel claim with the BIA, the petitioner

10   forfeits that claim in this Court).

11       Singh raises other grounds for why his motion to reopen

12   was excepted from the time and number limits on motions to

13   reopen, but he raised those arguments for the first time in

14   his reply brief.    Accordingly, we decline to address them.

15   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

16   n.7 (2d Cir. 2005) (providing that issues not sufficiently

17   argued in the briefs are considered waived); Knipe v.

18   Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (“Arguments may

19   not be made for the first time in a reply brief.”).

20       Because Singh’s motion to reopen was not filed within

21   the ninety day limit on motions to reopen, or the one year

22   limit on motions to reopen to apply for relief as a battered


                                    3
 1   spouse, the BIA did not abuse its discretion in denying his

 2   motion to reopen as untimely.       See 8 U.S.C.

 3   § 1229a(c)(7)(C)(i), (iv)(III).

 4       Singh argues that the BIA should have exercised its sua

 5   sponte authority, see 8 C.F.R. § 1003.2(a), to grant his

 6   motion without regard to its timeliness.      However, such a

 7   decision is “entirely discretionary,” and we lack

 8   jurisdiction to consider it.        Ali v. Gonzales, 448 F.3d

 9   515, 518 (2d Cir. 2006).   Nor is there any indication that

10   the BIA’s decision not to reopen sua sponte was based on any

11   legal error, see Mahmood v. Holder, 570 F.3d 466, 469 (2d

12   Cir. 2009) (providing that we have jurisdiction to review

13   the agency’s decision not to exercise its sua sponte

14   authority where the BIA misperceived the legal background).

15       Finally, Singh was not deprived of due process. The BIA

16   did not abuse its discretion in denying his motion to reopen

17   as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i), (iv)(III).

18       For the foregoing reasons, the petition for review is

19   DISMISSED in part and DENIED in part.      Singh’s motion for a

20   stay of removal is DENIED as moot.

21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23




                                     4
