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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 9th 4 day of May, two thousand fourteen.

5

6 PRESENT:

7 PIERRE N. LEVAL,

8 JOSÉ A. CABRANES, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _________________________________________

12

13 SUKHWINDER SINGH,

14 Petitioner, 

15

16 v. 13-1553

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONER: Robert B. Jobe, San Francisco,

24 California.

25

26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

27 General; Douglas E. Ginsburg,

28 Assistant Director; Katherine A.

29 Smith, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Sukhwinder Singh, a native and citizen of

6 India, seeks review of the April 15, 2013, order of the BIA

7 denying his fifth motion to reopen. In re Sukhwinder Singh,

8 No. A079 141 286 (B.I.A. Apr. 15, 2013). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history in this case. We review the agency’s

11 denial of Singh’s motion to reopen for abuse of discretion. 

12 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

13 An alien may file one motion to reopen no later than 90

14 days after the date on which the final administrative

15 decision was rendered in the proceedings sought to be

16 reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

17 § 1003.2(c)(2). Singh’s 2013 motion was untimely and number

18 barred because he filed four motions to reopen since he was

19 ordered removed in 2003. See 8 U.S.C. § 1229a(c)(7)(A),

20 (C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time

21 limitation does not apply to a motion to rescind if the

22 alien demonstrates that he did not receive notice of the

23 consequences for failing to appear at his hearing, as stated

2
1 in 8 U.S.C. § 1229a(b)(5). 8 C.F.R. § 1003.23(b)(4)(ii). 

2 The limitations may also be equitably tolled upon a showing

3 of ineffective assistance of counsel. See Iavorski v. INS,

4 232 F.3d 124, 135 (2d Cir. 2000). The BIA reasonably found

5 that neither exception applied here. 

6 Singh first argues that his Notice to Appear

7 misrepresented the consequences of failing to appear because

8 it stated that, in his absence, an in absentia removal order

9 “may,” rather than “shall,” be entered. To the contrary,

10 the NTA was accurate. Failure to appear despite proper

11 notice “shall” result in an in absentia removal order, but

12 only if the Government establishes notice and removability. 

13 8 U.S.C. § 1229a(b)(5). Singh also asserts that the Notice

14 was deficient because it failed to mention the procedures

15 for rescinding an in absentia order, as set forth in the

16 last three subsections of § 1229a(b)(5). However, the

17 statute requires notice only of the consequences of failing

18 to appear, not the procedure to reverse the resulting order. 

19 See 8 U.S.C. § 1229a(a)(1)(G)(ii). Accordingly, the BIA did

20 not abuse its discretion in finding that Singh’s motion to

21 rescind was untimely. See 8 C.F.R. § 1003.23(b)(4)(ii). 

22 The BIA also reasonably declined to equitably toll the

23 time limitation imposed on Singh’s motion. To establish

3
1 ineffective assistance of counsel, a movant must establish

2 that the alleged ineffective assistance occurred within the

3 scope of an existing attorney-client relationship and that

4 he exercised due diligence in pursuing his claim. See

5 Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); Piranej

6 v. Mukasey, 516 F.3d 137, 144-45 (2d Cir. 2008). Contrary

7 to Singh’s contention that his former counsel represented

8 him throughout his proceedings, the BIA reasonably found

9 that their relationship encompassed only the filing of

10 Singh’s first motion to reopen and the appeal from the

11 denial of that motion. 

12 Even assuming, as the BIA did, that his former counsel

13 provided ineffective assistance, the BIA reasonably found

14 that Singh should have discovered the lack of notice in

15 2003, when he was ordered removed in absentia. The

16 purported issue also became apparent in 2005, when the BIA

17 denied his second motion to reopen. Given Singh’s delay

18 between discovering his attorney’s ineffective assistance

19 and filing his motion to reopen, the BIA reasonably found

20 that he failed to exercise due diligence in pursuing his

21 claim. See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir.

22 2007) (“A petitioner who waits two years or longer to take

23 steps to reopen a proceedings ha[d] failed to demonstrate

4
1 due diligence.”). The BIA therefore did not abuse its

2 discretion in declining to equitably toll the motion and

3 denying it as untimely. See Rashid, 533 F.3d at 131.

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, any stay of removal

6 that the Court previously granted in this petition is VACATED,

7 and any pending motion for a stay of removal in this petition

8 is DISMISSED as moot. Any pending request for oral argument

9 in this petition is DENIED in accordance with Federal Rule of

10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14

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