13-1553 Singh v. Holder BIA A079 141 286 

### 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 Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 9 th** **day of May, two thousand fourteen.** 4 5 **PRESENT:** 6 **PIERRE N. LEVAL,** 7 **JOSÉ A. CABRANES,** 8 **CHRISTOPHER F. DRONEY**, 9 Circuit Judges **.** 10

**_________________________________________** 11 12 **SUKHWINDER SINGH,** 13 Petitioner**,** 14 15 **v. 13-1553** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_________________________________________** 21 22 **FOR PETITIONER: Robert B. Jobe, San Francisco,** 23 **California.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 26 **General; Douglas E. Ginsburg,** 27 **Assistant Director; Katherine A.** 28 **Smith, Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON 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 Petitioner Sukhwinder Singh, a native and citizen of 5 India, seeks review of the April 15, 2013, order of the BIA 6 denying his fifth motion to reopen. In re Sukhwinder Singh , 7 No. A079 141 286 (B.I.A. Apr. 15, 2013). We assume the 8 parties’ familiarity with the underlying facts and 9 procedural history in this case. We review the agency’s 10 denial of Singh’s motion to reopen for abuse of discretion. 11 See Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). 12 An alien may file one motion to reopen 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)(A), (C)(i); 8 C.F.R. 16 § 1003.2(c)(2). Singh’s 2013 motion was untimely and number 17 barred because he filed four motions to reopen since he was 18 ordered removed in 2003. See 8 U.S.C. § 1229a(c)(7)(A), 19 (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time 20 limitation does not apply to a motion to rescind if the 21 alien demonstrates that he did not receive notice of the 22 consequences for failing to appear at his hearing, as stated 23

2in 8 U.S.C. § 1229a(b)(5). 8 C.F.R. § 1003.23(b)(4)(ii). 1 The limitations may also be equitably tolled upon a showing 2 of ineffective assistance of counsel. See Iavorski v. INS , 3 232 F.3d 124, 135 (2d Cir. 2000). The BIA reasonably found 4 that neither exception applied here. 5 Singh first argues that his Notice to Appear 6 misrepresented the consequences of failing to appear because 7 it stated that, in his absence, an in absentiaremoval order 8 “may,” rather than “shall,” be entered. To the contrary, 9 the NTA was accurate. Failure to appear despite proper 10 notice “shall” result in an in absentiaremoval order, but 11 only if the Government establishes notice and removability. 12 8 U.S.C. § 1229a(b)(5). Singh also asserts that the Notice 13 was deficient because it failed to mention the procedures 14 for rescinding an in absentiaorder, as set forth in the 15 last three subsections of § 1229a(b)(5). However, the 16 statute requires notice only of the consequences of failing 17 to appear, not the procedure to reverse the resulting order. 18
See8 U.S.C. § 1229a(a)(1)(G)(ii). Accordingly, the BIA did 19 not abuse its discretion in finding that Singh’s motion to 20 rescind was untimely. See8 C.F.R. § 1003.23(b)(4)(ii). 21 The BIA also reasonably declined to equitably toll the 22 time limitation imposed on Singh’s motion. To establish 23

3ineffective assistance of counsel, a movant must establish 1 that the alleged ineffective assistance occurred within the 2 scope of an existing attorney-client relationship and that 3 he exercised due diligence in pursuing his claim. See 4 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); Piranej 5 v. Mukasey, 516 F.3d 137, 144-45 (2d Cir. 2008). Contrary 6 to Singh’s contention that his former counsel represented 7 him throughout his proceedings, the BIA reasonably found 8 that their relationship encompassed only the filing of 9 Singh’s first motion to reopen and the appeal from the 10 denial of that motion. 11 Even assuming, as the BIA did, that his former counsel 12 provided ineffective assistance, the BIA reasonably found 13 that Singh should have discovered the lack of notice in 14 2003, when he was ordered removed in absentia . The 15 purported issue also became apparent in 2005, when the BIA 16 denied his second motion to reopen. Given Singh’s delay 17 between discovering his attorney’s ineffective assistance 18 and filing his motion to reopen, the BIA reasonably found 19 that he failed to exercise due diligence in pursuing his 20 claim. See Jian Hua Wang v. BIA , 508 F.3d 710, 715 (2d Cir. 21 2007) (“A petitioner who waits two years or longer to take 22 steps to reopen a proceedings ha[d] failed to demonstrate 23

4due diligence.”). The BIA therefore did not abuse its 1 discretion in declining to equitably toll the motion and 2 denying it as untimely. See Rashid , 533 F.3d at 131. 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, any stay of removal 5 that the Court previously granted in this petition is VACATED, 6 and any pending motion for a stay of removal in this petition 7 is DISMISSED as moot. Any pending request for oral argument 8 in this petition is DENIED in accordance with Federal Rule of 9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 10 34.1(b). 11
FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 15

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