21

- 65 79 Singh v. Garland BIA A 200 939 076



### 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. At a stated term of the United States Court of Appeals for the Second 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 2 9 t h d a y of N o v e m b e r , two thousand 3 twenty

- t hree

. 4 5 PRESENT: 6 JOHN M. WALKER, JR., 7 MICHAEL H. PARK, 8 SARAH A. L. MERRIAM, 9 Circuit Judges. 10

_____________________________________ 11 12 SURJIT SINGH , 13 Petitioner , 14 15

v. 21

- 65 79 16 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 212 FOR PETITIONER : Jaspreet Singh , Law Office of Jaspreet Singh, 1 Richmond Hill , NY

. 2 3 FOR RESPONDENT: Brian M. Boynton , Principal Deputy Assistant 4 Attorney General ; Anthony C. Payne , 5 Assistant Director ; Raya Jarawan , Trial 6 Attorney, Office of Immigration Litigation, 7 United States Department of Justice, 8 Washington, D

. C. 9 10 UPON DUE CONSIDERATION of this petition for review of a Board of 11
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, 12

AND DECREED that the petitio n for review is DENIED

. 13

Petitioner Surjit Singh , a native and citizen of India , seeks review of a n 14

October 7 , 2021 , decision of the BIA denying hi s motion s to reopen his removal 15
proceedings

. In r e Surjit Singh , No. A 200 939 076 (B.I.A. Oct. 7 , 2021 ). We 16
assume the parties’ familiarity with the underlying facts and procedural history

. 17
The only decision before us is the BIA’s denial of Singh’s second and third 18

motion s to reopen , in which Singh sought reopening to re

- apply for asylum and 19

related relief based on his fear that Congress Party members and the police would 20
harm him and his family based on his support for the Shiromani Akali Dal 21
Amritsar (“SADA”) Party

. He alleges that changed conditions in India and the 223 ineffective assistance of his former attorneys excuse d the time and number 1

limitations on his motions

. See 8 U.S.C. § 1252(b)(1); Kaur v. BIA , 413 F.3d 232, 233 2
(2d Cir. 2005)

. We review the BIA’s denial of a motion to reopen for abuse of 3
discretion and any findings regarding changed country conditions for substantial 4

evidence. See Jian Hui Shao v. Mukasey , 546 F.3d 138, 168

- 69 (2d Cir. 2008). 5
It is undisputed that Singh’s 2019 and 202 1 motion s were untimely and 6
number barred because they were his second and third motions to reopen filed 7
years after his removal order became final in 2014

. See 8 U.S.C. § 1229a(c)(7) (A), 8
(C)(i) (setting one

- motion limit and 90

- day deadline for motion s to reopen); 9

8 C.F.R. § 1003.2(c)(2) (same). However, t he time and number limits do not apply 10
if reopening is sought to apply for asylum and the motion “is based on changed 11
country conditions arising in the country of nationality or the country to which 12

removal has been ordered, if such evidence is material and was not available and 13
would not have been discovered or presented at the previous proceeding

. ” 14

8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3) . T ime an d number limits may 15

also be excused by a claim of ineffective assistance of counsel

. S ee Cekic v. INS , 16
435 F.3d 167, 170 (2d Cir. 2006); see also Iavorski v. INS , 232 F.3d 124, 132 (2d Cir. 174 2000). The BIA did not err in concluding that neither exception applied to Singh’s 1

motions. 2
2019 Motion to Reopen 3
In denying Singh’s 2019 motion, the BIA did not err in relying on an 4
underlying adverse credibility determination to decline to credit Singh’s affidavit, 5
which was the only evidence he submitted to support his assertion of changed 6

circumstances

. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally 7
defer to the agency’s evaluation of the weight to be afforded an applicant’s 8
documentary evidence.”) . The adverse credibility finding, dating to Singh’s 9
original 2010 application, was based on inconsistencies in his testimony and the 10

submission of unreliable documents. As we have held, a single false document 11
or a single instance of false testimony may infect the balance of an applicant’s 12

uncorroborated evidence. See Qin Wen Zheng v. Gonzales , 500 F.3d 143, 146

- 49 (2d 13
Cir. 2007) (upholding agency’s decision not to credit an unauthenticated village 14
committee notice submitted with a motion to reopen where movant was found not 15
credible in the underlying proceeding). The BIA acted within its discretion when 165 it concluded that Singh’s new affidavit was entitled to little weight in light of the 1
prior adverse credibility finding. 2
2021 Motion to Reopen 3
In denying Singh’s 2021 motion to reopen, the BIA did not err in finding that 4
Singh failed to show that the changed country conditions exception applied 5

because (1) his individualized evidence was previously available at the time of his 6
2013 hearing, did not rebut the underlying adverse credibility determination, or 7

was not reliable, and (2) his country conditions evidence did not show a change in 8

the treatment of SADA members since the time of his hearing

. S ee 8 U.S.C. 9
§ 1229a(c)(7)(C)(ii) ( requiring previously unavailable evidence for reopening 10
based on changed conditions) ; see also Y.C. , 741 F.3d at 334 (“We defer to the 11
agency’s determination of the weight afforded to an alien’s documentary 12
evidence.”) ; Matter of F

- S

- N

- , 28 I. & N. Dec. 1, 3 (B.I.A. 2020) (“[T]o prevail on a 13
motion to reopen alleging changed country conditions where the persecution 14
claim was previously denied based on an adverse credibility finding in the 15
underlying proceedings, the [movant] must either overcome the prior 16
determination or show that the new claim is independent of the evidence that was 176 found to be not credible.”); Kaur , 413 F.3d at 234 (finding no error in the BIA’s 1
determination that “evidence submitted by petitioner in support of [the] motion 2
was not ‘material’ because it did not rebut the adverse credibility finding that 3
provided the basis for the IJ’s denial of petitioner’s underlying asylum 4
application”). We find no merit to Singh’s argument that the agency’s underlying 5
adverse credibility determination did not reach the credibility of his membership 6

in SADA because that adverse credibility determination was based in part on the 7
finding that Singh submitted a suspect voter identification card and the IJ did not 8
limit the credibility determination to isolated portions of Singh’s claim. 9
The BIA also did not abuse its discretion in declining to excuse the time and 10
number limits based on Singh’s claims of ineffective assistance of counsel. A 11
movant raising an ineffective assistance claim must first comply with the 12
procedural requirements laid out in Matter of Lozada

. 19 I. & N. Dec. 637 (B.I.A. 13
1988) ; s ee Jian Yun Zheng v. U.S. Dep’t of Just

. , 409 F.3d 43, 46

- 47 (2d Cir. 2005). 14

Under Lozada , a noncitizen raising an ineffective assistance of counsel claim must 15
include with their motion an affidavit detailing their agreement with former 16
counsel, proof that the movant notified counsel of the allegations, and a statement 177 as to whether the movant filed a complaint with the proper disciplinary 1

authorities. Twum v. INS , 411 F.3d 54, 59 (2d Cir. 2005). Failure to comply with 2

the Lozada requirements constitutes forfeiture of the ineffective assistance claim. 3
See Jian Yun Zheng , 409 F.3d at 46

- 47. 4
The BIA did not err in rejecting Singh’s ineffective assistance claims because 5
he failed to comply with the Lozada requirements. Id. He did not submit 6
evidence that he had complied with any of the Lozada requirements as to three of 7
the four attorneys he claimed were ineffective, and although he submitted a letter 8

addressed to the Attorney Grievance Committee for the Supreme Court of New 9

York alleging ineffective assistance of one attorney , he did not submit evidence 10

that he sent the letter to the Committee

. B ecause Singh did not provide evidence 11

that he substantially complied with the Lozada requirements as to any of his former 12
attorneys, the BIA did not abuse its discretion in rejecting his ineffective assistance 13

of counsel claims and declining to excuse the time and number limits on that basis. 14

Id. at 46. 15

16

178 For the foregoing reasons, the petition for review is DENIED

. All pending 1
motions and applications are DENIED and stays VACATED. 2

FOR THE COURT: 3 Catherine O ’ Hagan Wolfe, 4 Clerk of Court 5