11-952-ag Singh v. Holder BIA A076 726 584 

### 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 4 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 **BARRINGTON D. PARKER,** 8 **REENA RAGGI,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **TARSEM SINGH,** 13 Petitioner**,** 14 15 **v. 11-952-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Jaspreet Singh, Jackson Heights, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Ernesto H. Molina, Jr.,** 27 **Assistant Director; Bernard A.** 28 **Joseph, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 is DENIED. 4 Tarsem Singh, a native and citizen of India, seeks 5 review of a February 24, 2011 order of the BIA denying his 6 motion to reopen.In re Tarsem Singh, No. A076 726 584(BIA 7 Feb. 24, 2011). We assume the parties’ familiarity with the 8 underlying facts and procedural history of the case. 9 The BIA’s denial of Singh’s motion to reopen as 10 untimely was not an abuse of discretion. See Debeatham v. 11 Holder, 602 F.3d 481, 484 (2d Cir. 2010) (per curiam). A 12 motion to reopen must generally be filed no later than 90 13 days after the date on which the final administrative 14 decision was rendered in the proceedings sought to be 15 reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 16 § 1003.2(c)(2). Singh’s 2010 motion was untimely as the 17 final administrative decision was issued in 2007. However, 18 the time limitation does not apply to a motion to reopen if 19 it “is based on changed country conditions arising in the 20 country of nationality or the country to which removal has 21 been ordered, if such evidence is material and was not 22 available and could not have been discovered or presented at 233 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). 1 Singh contends that he submitted material evidence of 2 changed country conditions to the BIA in the form of 3 affidavits and country reports. Specifically, he claims 4 that increased human rights abuses by police in India 5 support his claim that he would face persecution based on 6 his involvement in the Akali Dal Mann (“ADM”) political 7 party. 8 In declining to credit the evidence Singh submitted in 9 support of his motion to reopen, the BIA properly relied on 10 the adverse credibility finding made in Singh's underlying 11 removal proceeding, which was not challenged before this 12 Court and has not been challenged in the present proceeding. 13
See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) 14 (concluding that the BIA acted within its discretion where 15 it “clearly explained that the evidence submitted by 16 petitioner in support of her motion was not ‘material’ 17 because it did not rebut the adverse credibility finding 18 that provided the basis for the IJ’s denial of petitioner’s 19 underlying asylum application”). Moreover, on review of the 20 denial of a motion to reopen, this Court is “precluded from 21 passing on the merits” of the underlying adverse credibility 224 finding. Kaur, 413 F.3d at 233 (internal quotation marks 1 omitted). 2 Singh’s reliance on Paul v. Gonzales , 444 F.3d 148 (2d 3 Cir. 2006), is misplaced because the factual predicate of 4 Singh’s motion to reopen is not independent of the testimony 5 that was found incredible in the underlying proceeding. See 6 Paul , 444 F.3d at 154 (explaining that “an applicant may 7 prevail on a theory of future persecution despite an IJ’s 8 adverse credibility ruling as to past persecution, so long 9 as the factual predicate of the applicant’s claim of future 10 persecution is independent of the testimony that the IJ 11 found not to be credible” (emphasis in original)). Indeed, 12 the motion to reopen is based on the same claim underlying 13 Singh’s asylum application: that the Indian police had 14 previously targeted him and will target him in the future 15 because of his membership in ADM. In its 2007 decision, the 16 BIA found that Singh had failed to establish both past 17 persecution and a well-founded fear of future persecution 18 because his testimony that he was a member of ADM was not 19 credible. 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our review, any stay of 225 removal that the Court previously granted in this petition 1 is VACATED, and Singh’s pending motion for a stay of removal 2 in this petition is DENIED as moot. Any pending request for 3 oral argument in this petition is DENIED in accordance with 4 Federal Rule of Appellate Procedure 34(a)(2), and Second 5 Circuit Local Rule 34.1(b). 6
FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 10