2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-17-2009

Simerjeet Singh v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2662

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-2662

___________

SIMERJEET SINGH,

Petitioner

vs.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 ___________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A70-703-005)

Immigration Judge: Eugene Pugliese

____________________________________

Submitted Under Third Circuit LAR 34.1(a)

December 16, 2009

Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges

(Opinion filed : December 17, 2009)

_________

OPINION

_________

PER CURIAM.

Petitioner Simerjeet Singh, a native and citizen of India, seeks review of the

Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen proceedings. 

Because we conclude that the BIA did not abuse its discretion in denying that motion, we
 Pursuant to 8 U.S.C. § 1186a(c)(4)(B), the Attorney General has discretion to 1

remove the conditional basis of permanent resident status for an alien who, although

divorced from the United States citizen spouse, nevertheless demonstrates that the

marriage was entered into in good faith.

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will deny Singh’s petition for review.

I.

Singh entered the United States without inspection in December 1992. His

status was eventually adjusted to that of a conditional permanent resident following his

marriage to Hattie Pender, a United States citizen. When the two divorced, the

Government terminated Singh’s conditional permanent resident status and initiated

removal proceedings. At a hearing before the Immigration Judge (“IJ”), Singh sought to

block his removal by arguing that he was entitled to relief under 8 U.S.C. §

1186a(c)(4)(B). In February 2006, the IJ denied the application, finding that Singh had 1

“failed to show by a preponderance of the evidence that his marriage was entered into in

good faith and not for the purpose of obtaining an Immigration benefit.” On November

13, 2007, the BIA upheld the IJ’s findings and dismissed the appeal. On December 6,

2007, Singh filed a motion to remand, claiming that his daughter’s anticipated

naturalization entitled him to an adjustment of status. The BIA denied the motion on

February 1, 2008, finding that since the daughter’s naturalization process was still

pending, “any potential claim to adjustment of status is premature, and at best,

speculative.” 
 Singh does not address this part of the BIA’s decision in his brief on appeal. As a 2

result, any issues relating thereto are deemed waived. See Chen v. Ashcroft, 381 F.3d

221, 235 (3d Cir. 2004).

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Singh filed a motion to reopen proceedings on February 19, 2008, primarily

claiming that he received ineffective assistance from his previous counsel who did not

inform him that he could obtain a hardship waiver under § 1186a(c)(4)(A) (“extreme

hardship would result if such alien is removed”). On May 15, 2008, the BIA denied the

motion, concluding that it exceeded the numerical and time limitations for motions to

reopen under 8 C.F.R. § 1003.2(c)(2). The BIA determined that even if Singh could

overcome the motion’s procedural deficiencies, and presuming that his prior counsel’s

performance was deficient, Singh’s claim of “extreme hardship” lacked the requisite

merit to demonstrate any prejudice resulting from counsel’s deficient performance. The

BIA also determined that, insofar as Singh had raised a claim of ineffective assistance

based on counsel’s failure to advise him of his ability to file a petition for review with this

Court, Singh had “failed to substantially comply with the procedural requirements

provided in Matter of Lozada[, 19 I. & N. Dec. 637 (BIA 1988)] as it relates to this

claim.” Singh appealed, and the Government moved to dismiss his petition for review 2

for lack of jurisdiction. 

II.

We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 
 The Government cites to Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004), 3

and Cospito v. Att’y Gen., 539 F.3d 166 (3d Cir. 2008), for the proposition that we lack

jurisdiction to review the discretionary denial of waivers under 8 U.S.C. § 1186a(c)(4). 

But we are not reviewing the denial of a discretionary hardship waiver; instead, we are

reviewing the BIA’s denial of Singh’s motion to reopen based on the alleged ineffective

assistance of his prior counsel. The Government, inadvertently perhaps, concedes this

distinction. (Gov’t Br. at 10) (“the Board did not adjudicate the hardship waiver[,] it

adjudicated a motion to reopen”). Moreover, Cospito, and each of the cases we cited to

therein, involved an alien’s attempt at direct judicial review of the denial of a

discretionary waiver, not review of the denial of a motion to reopen. Thus, the cases cited

to by the Government are easily distinguishable, and we deny its motion to dismiss. In

addition, Singh’s argument that the BIA lacked jurisdiction to adjudicate the hardship

waiver application fails for the reasons just discussed. See also Sevoian, 290 F.3d at 170.

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1252(a). We review the denial of a motion to reopen for abuse of discretion. See Borges 3

v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005); see also Cruz v. Attorney General of the

United States, 452 F.3d 240, 242 (3d Cir. 2006). Under this standard, we may reverse the

BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,

290 F.3d 166, 174 (3d Cir. 2003). We exercise de novo review of the BIA’s

determination concerning an underlying procedural due process claim, such as a

determination that an alien has failed to comply with the Lozada requirements to establish

an ineffective assistance of counsel claim. See Fadiga v. Att’y Gen., 488 F.3d 142, 153

(3d Cir. 2007). 

When a motion to reopen is denied on prima facie grounds, we review any

findings of fact for substantial evidence. See Sevoian, 290 F.3d at 174. Even if the

movant has made out a prima facie case, the BIA has discretion to deny a motion to

reopen if it is procedurally deficient. See 8 C.F.R. § 1003.2(a). In general, motions to
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reopen must be filed within ninety days from the date “the final administrative decision

was rendered,” and only one such motion is allowed. 8 C.F.R. § 1003.2(c)(2). A motion

to remand is equivalent to a motion to reopen for § 1003.2(c)(2) purposes where it

requests the relief normally sought in a motion to reopen. See Matter of Coelho, 20 I. &

N. Dec. 464, 471 (BIA 1992). 

III.

Pursuant to Matter of Coelho, the BIA was permitted to construe Singh’s

motion to remand as a motion to reopen. See id. (“the motion to remand is in the nature

of a motion to reopen since the respondent requests additional proceedings to present

evidence . . . which was not available during the initial proceedings”). As a result, the

BIA did not abuse its discretion in concluding that Singh’s subsequent motion to reopen

was number-barred under 8 C.F.R. § 1003.2(c)(2). Nor did it abuse its discretion to the

extent it denied the motion to reopen on prima facie grounds. The BIA rightly concluded

that Singh’s ineffective assistance claim, based on the alleged failure of prior counsel to

apprise Singh of his eligibility for a § 1186a(c)(4)(A) hardship waiver, lacked merit

because Singh had not demonstrated that he was prejudiced by not having applied for that

waiver. To that end, we find no error in the BIA’s conclusion that Singh’s “simply

stating that he has a lawful permanent resident daughter and United States citizen

grandchildren, that he is a member of a Sikh association, that he is a business owner, and

that he is learning English, without further explanation of what, if any, hardships are
involved, does not show a prima facie claim of extreme hardship.” 

Accordingly, we will deny the petition for review. 

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