21-6602

Singh v. Garland

BIA

A208 188 486

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 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 6th day of March, two thousand 

twenty-four.

PRESENT:

REENA RAGGI,

JOSEPH F. BIANCO,

BETH ROBINSON,

Circuit Judges.

_____________________________________

AMRITPAL SINGH,

Petitioner,

v. 21-6602

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________
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FOR PETITIONER: Anas J. Ahmed, Esq., Jackson Heights, NY.

FOR RESPONDENT: Brian Boynton, Principal Assistant Attorney 

General; John S. Hogan, Assistant Director; 

Christina R. Zeidan, Trial Attorney, Gordon 

Y. Siu, Law Clerk, Office of Immigration 

Litigation, United States Department of 

Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED.

Petitioner Amritpal Singh, a native and citizen of India, seeks review of an 

October 19, 2021 decision of the BIA denying his motion to reopen his removal 

proceedings. In re Amritpal Singh, No. A 208 188 486 (B.I.A. Oct. 19, 2021). We 

assume the parties’ familiarity with the underlying facts and procedural history. 

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

discretion. See Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007). The 

BIA abuses its discretion if its “decision provides no rational explanation, 

inexplicably departs from established policies, is devoid of any reasoning, or 

contains only summary or conclusory statements; that is to say, where the Board 

has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Just., 
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265 F.3d 83, 93 (2d Cir. 2001) (citations omitted). We review the factual 

determinations underlying a denial of reopening for substantial evidence. See 

Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing country 

conditions determination for substantial evidence). The application of law to 

undisputed fact in a due diligence analysis is a question of law subject to de novo 

review. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1067, 1068 (2020); Dale v. Barr, 967 F.3d 

133, 138 (2d Cir. 2020) (reviewing constitutional claims and questions of law de 

novo). 

It is undisputed that Singh’s December 2020 motion to reopen was untimely 

filed more than 90 days after the BIA’s February 2020 dismissal of his appeal. See

8 U.S.C. § 1229a(c)(7)(C)(i). The 90-day deadline may be equitably tolled based 

on ineffective assistance of counsel, see Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 

2008), if the movant can demonstrate that he “exercised due diligence in pursuing 

the case during the period [he] seeks to toll,” Iavorski v. U.S. INS, 232 F.3d 124, 135 

(2d Cir. 2000); see Cedie v. INS, 435 F.3d 167, 171 (2d Cir. 2006) (stating that movant 

“bear[s] the burden of proving that [he] w[as] in fact diligent”). “This includes 

both the period of time before the ineffective assistance of counsel was or should 
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have been discovered and the period from that point until the motion to reopen is 

filed.” Rashid, 533 F.3d 132. There is no “magic period of time” for equitable 

tolling. Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). Whether the 

noncitizen acted within a reasonable amount of time depends on the 

circumstances of each case. See Id. 

Here, the BIA did not abuse its discretion in denying Singh’s motion to 

reopen. The BIA determined that Singh did not exercise reasonable diligence in 

waiting 10 months after the dismissal of his appeal before moving to reopen 

because Singh was aware of the facts underlying his ineffective assistance claim at 

the time of his hearing before the IJ. The record supports this conclusion. 

Singh alleges that his prior counsel was ineffective because he (1) misstated

facts in Singh’s asylum application; and (2) submitted to the BIA a “boilerplate 

brief addressed to a different alien and claim altogether.” Appellant’s Br. 13. 

Singh alleges that he did not learn of the misstatements in the application or the 

failure to file a proper appellate brief until December 2020, when he consulted with 

new counsel. 

As to the misstatements, Singh was questioned several times at the hearing 
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about factual discrepancies between his application and his hearing testimony. 

While he responded that he did not know why his application contained those 

facts, in an affidavit he acknowledged being present while his counsel filled out 

his application, and repeatedly confirmed during the hearing that the information 

contained therein was incorrect. Also, Singh was present for the IJ’s oral decision, 

which included an adverse credibility determination based on inconsistencies

between his testimony and his application. This record thus supports the 

conclusion that Singh knew, or should have known, as of his IJ hearing date that 

his attorney was responsible for misstatements in his application. His failure to 

raise this issue until December 2020—more than 2 years after the hearing, 10 

months after the BIA dismissed his appeal, and 7 months after the time to move to 

reopen expired, demonstrates a lack of due diligence. See Rashid, 533 F.3d at 132 

(finding lack of diligence where petitioner failed to act for 14 months after he knew 

or should have known of allegedly ineffective assistance of counsel); Wang, 508 

F.3d at 715–16 (finding lack of diligence where petitioner waited more than eight 

months to exercise rights). 

As to the “boilerplate” appellate brief, Singh argues that he did not know or 
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have reason to know about the issue until consulting with his new counsel. 

However, Singh acknowledges that he learned of the BIA’s dismissal of his appeal 

shortly after it issued. He does not claim to have taken any steps in the next ten 

months to investigate grounds to reopen despite being on notice of both problems 

with counsel since the hearing and counsel’s failure to respond to requests for a 

copy of the BIA’s decision. On this record, the BIA did not err in concluding that 

Singh failed to exercise due diligence during the entire period he sought to toll. 

Finally, Singh argues that he acted promptly after learning that he had to 

report for removal. But that removal notice does not excuse Singh’s knowledge 

of the facts underlying his ineffective assistance claim, which imposed a due 

diligence obligation on him to act sooner in seeking reopening. 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court