     18-2158
     Singh v. Barr
                                                                           BIA
                                                                      Cheng, IJ
                                                                   A072 765 492


                          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 TO 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 Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 5th day of August, two thousand twenty.
 5
 6   PRESENT:
 7            RAYMOND J. LOHIER, JR.,
 8            RICHARD J. SULLIVAN,
 9            STEVEN J. MENASHI,
10                 Circuit Judges.
11   _____________________________________
12
13   KAMALJIT SINGH,
14            Petitioner,
15
16                   v.                                  18-2158
17                                                       NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                 Melinda M. Basaran, BK Law Firm
24                                   LLC, Clifton, NJ.
25
26   FOR RESPONDENT:                 Joseph H. Hunt, Assistant Attorney
27                                   General; Jeffery R. Leist, Senior
 1                                      Litigation Counsel; Kathleen Kelly
 2                                      Volkert, Trial Attorney, Office of
 3                                      Immigration Litigation, United
 4                                      States Department of Justice,
 5                                      Washington, DC.

 6          UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10          Petitioner Kamaljit Singh, a native and citizen of India,

11   seeks review of a June 27, 2018 decision of the BIA affirming

12   a January 31, 2018 decision of an Immigration Judge (“IJ”)

13   denying Singh’s motion to rescind his in absentia exclusion

14   order and reopen his proceedings to allow him to apply for

15   asylum, withholding of removal, and protection under the

16   Convention Against Torture.             In re Kamaljit Singh, No. A 072

17   765 492 (B.I.A. Jun. 27, 2018), aff’g No. A 072 765 492 (Immig.

18   Ct.    N.Y.C.    Jan.     31,    2018).      We     assume   the   parties’

19   familiarity with the underlying facts and procedural history.

20          Under the circumstances of this case, we have considered

21   both    the     IJ’s    and     BIA’s   decisions    “for    the   sake   of

22   completeness.”         Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

23   524, 528 (2d Cir. 2006).            We review the denial of a motion

24   to rescind an exclusion order and reopen proceedings for abuse
                                    2
 1   of discretion, see Twum v. INS, 411 F.3d 54, 58 (2d Cir.

 2   2005), and we review any finding regarding changed country

 3   conditions for substantial evidence, see Jian Hui Shao v.

 4   Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).       The agency

 5   abuses its discretion if its decision “provides no rational

 6   explanation, inexplicably departs from established policies,

 7   is devoid of any reasoning, or contains only summary or

 8   conclusory statements; that is to say, where the [agency] has

9    acted in an arbitrary or capricious manner.”      Ke Zhen Zhao

10   v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)

11   (internal citations omitted).

12          Here, the agency did not abuse its discretion in denying

13   Singh’s motion because Singh did not establish (1) reasonable

14   cause for failing to appear at his exclusion hearing or

15   (2) changed country conditions to warrant reopening to apply

16   for asylum.

17     I.     Motion to Rescind In Absentia Exclusion Order

18          Exclusion orders entered in absentia may be rescinded

19   upon a showing of “reasonable cause for [the] failure to

20   appear.”    8 C.F.R. § 1003.23(b)(4)(iii)(B); Twum, 411 F.3d

21   at 58; see also In re N-B-, 22 I. & N. Dec. 590, 592–93


                                     3
 1   (B.I.A. 1999) (noting that the time restrictions and stricter

 2   “exceptional circumstances” standard imposed on motions to

 3   reopen deportation proceedings do not apply to exclusion

 4   proceedings).   One such cause is where the alien did not

 5   receive proper notice of the hearing.     See Matter of Haim,

 6   19 I. & N. Dec. 641, 642 (B.I.A. 1988).    While Singh argues

 7   that this was the reason he failed to attend his hearing, the

 8   record says otherwise.

 9       In 1995, Singh was personally served       notice of   his

10   May 7, 1996 hearing.     His attorney also received notice of

11   the hearing by mail.     And before denying reopening, the IJ

12   listened to the recording of the original proceeding and found

13   that Singh’s prior counsel was present and told the previous

14   IJ that he had mailed a copy of the hearing notice to Singh’s

15   last known address, but Singh did not respond.   Accordingly,

16   the record contradicts Singh’s allegation that he did not

17   receive proper notice.    And, in any event, Singh’s more than

18   twenty-year delay in moving to rescind his exclusion order

19   and reopen his proceedings undermines his claim that he would

20   have appeared had he received proper notice.




                                    4
 1        II. Changed Country Conditions

 2          An alien seeking to reopen proceedings to apply for new

 3   relief generally may file a motion to reopen no later than

 4   90 days after the final administrative decision was rendered.

 5   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).

 6   Singh’s 2017 motion would seem to be untimely, then, since it

 7   was filed twenty-one years after he was ordered excluded in

 8   absentia.       But there is an exception.            The time limit does

 9   not apply to a motion to reopen seeking asylum “based on

10   changed       country    conditions       arising    in   the     country    of

11   nationality or the country to which removal has been ordered,

12   if such evidence is material and was not available and would

13   not    have    been     discovered       or   presented   at    the    previous

14   proceeding.”            8 U.S.C.     § 1229a(c)(7)(C)(ii);            see   also

15   8 C.F.R. § 1003.23(b)(4)(i).

16          “In determining whether evidence accompanying a motion

17   to    reopen     demonstrates        a    material    change     in     country

18   conditions       that    would     justify      reopening,      [the    agency]

19   compare[s] the evidence of country conditions submitted with

20   the motion to those that existed at the time of the merits

21   hearing below.”          In re S-Y-G-, 24 I. & N. Dec. 247, 253


                                               5
 1   (B.I.A. 2007).        “Change that is incremental or incidental

 2   does not meet” this changed conditions requirement for late

 3   motions.    Id. at 257.

 4       Singh argues broadly that his motion to reopen falls

 5   within this exception because conditions for Sikhs in India

 6   have worsened since his original removal proceeding.                    To

 7   support his claim, Singh submitted four documents:                 (i) a

 8   November 2015 news article on recent anti-Sikh violence in

 9   India,    (ii) an    October      2015   news   article   concerning    an

10   increase in Sikh-led protests, (iii) the 2016/2017 Amnesty

11   International Report for India, and (iv) the 2016 U.S. State

12   Department Human Rights Report for India.            But none of these

13   reports    demonstrates     the     type   of   changed   circumstances

14   necessary for Singh to reopen his petition.

15       For instance, the November 2015 news article indicates

16   that nothing has changed in the treatment of Sikhs in India

17   since a 1984 massacre.         Similarly, the 2016 State Department

18   Report    notes    that   there    was   societal   violence   based   on

19   religious affiliation in India, but does not indicate that

20   Sikhs    were   targeted    or    that   violence   against    Sikhs   has

21   increased.        And the Amnesty International Report does not


                                          6
 1   mention violence against Sikhs beyond the 1984 massacre.

 2          The country conditions evidence at the time of Singh’s

 3   1996    hearing—which    consisted       solely   of     a    1995   State

 4   Department    Report    on   India—is    not   materially      different.

 5   Violence against Sikhs and by Sikh militants who wanted a

 6   separatist state was common.           Given this account of general

 7   violence, as compared to the more recent reports of religious

 8   tensions with Sikhs, and the absence of any other country

 9   conditions    evidence   preceding      Singh’s   1996       hearing,   the

10   agency did not abuse its discretion in determining that Singh

11   failed to establish a material change in conditions for Sikhs

12   to warrant reopening.        See 8 U.S.C. § 1229a(c)(7)(C).

13          For the foregoing reasons, the petition for review is

14   DENIED.    All pending motions and applications are DENIED and

15   stays VACATED.

16                                    FOR THE COURT:
17                                    Catherine O’Hagan Wolfe,
18                                    Clerk of Court




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