Petitioner’s prior counsel, Martin Avila Robles, 1 submitted a brief in this case. Although he was later granted leave to withdraw as counsel, his brief remains a part of the record, and we have considered it. 09-1 4 1 9-ag Singh v. Holder BIA Weisel, IJ A072 764 161 

### UNITED STATES COURT OF AP PEALS FOR THE SECOND CIRCU IT 

# SUM MARY ORDER

RULI N G S 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 25 day of March, two thousand ten. th 5 6 PRESENT: 7 REENA RAGGI, 8 RICHARD C. WESLEY, 9 PETER W. HALL, 10 Circuit Judges . 11

_________________________________________ 12 13 YOGA SINGH, 14 Petitioner , 15 16 v. 09-1419-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_________________________________________ 22 23 FOR PETITIONER: William Frick, Seattle, Washington. 1 24 25 FOR RESPONDENT: Tony West, Deputy Assistant Attorney2 1 General; Greg D. Mack, Senior 2 Litigation Counsel; Richard 3 Zanfardino, Trial Attorney, Office 4 of Immigration Litigation, United 5 States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 0 ORDERED, ADJUDGED, AND DECREED that the petition for review 1 1 is DENIED. Petitioner’s motion to remand is also DENIED. 1 2 Petitioner Yoga Singh, a native and citizen of India, 1 3 seeks review of the March 17, 2009, order of the BIA, 1 4 affirming the October 3, 2008, decision of Immigration Judge 1 5 (“IJ”) Robert D. Weisel, which denied his motion to reopen. 16 In re Yoga Singh , No. A072 764 161 (B.I.A. Mar. 17, 2009), 17 aff’gNo. A072 764 161 (Immig. Ct. N.Y. City Oct. 3, 2008). 1 8 Singh also moves this Court to remand his case to the BIA 1 9 pending adjudication of his application for adjustment of 2 0 status. We assume the parties’ familiarity with the 2 1 underlying facts and procedural history of the case. 22 I. Motion to Remand 2 3 As a preliminary matter, we will deny Singh’s motion 2 4 for a “Continuance/Remand.” Singh alleges that remand is 2 5 appropriate because he is eligible for adjustment of status 2 6 under Matter of Yauri , 25 I.& N. Dec. 103 (BIA 2009), and3 1 that he has an adjustment application pending with 2 U.S.C.I.S. As a general matter, we may not consider 3 evidence that is not part of the administrative record. See 4 8 U.S.C. § 1252(b)(4)(A). To the extent we retain any 5 inherent equitable power to remand, such relief is not 6 warranted in this case. See Xiao Xing Ni v. Gonzales , 494 7 F.3d 260, 269 (2d Cir. 2007). 8 II. Petition for Review 9 We also deny the petition for review. Motions to 1 0 reopen in absentiaexclusion orders are governed by 1 1 different rules depending on whether the movant seeks to 1 2 rescind the order or present new evidence. See Song Jin Wu 13 v. INS , 436 F.3d 157, 163 (2d Cir. 2006); In re M-S- , 22 I. 1 4 & N. Dec. 349, 353-55 (BIA 1998) ( en banc ). Accordingly, 1 5 when, as here, an alien files a motion that seeks both 1 6 rescission of an in absentia exclusion order, and reopening 1 7 of proceedings to apply for new relief, we treat the BIA’s 1 8 decision as having denied distinct motions to rescind and to 1 9 reopen. Alrefae v. Chertoff , 471 F.3d 353, 357 (2d Cir. 2 0 2006); see also Maghradze v. Gonzales , 462 F.3d 150, 152 n.1 2 1 (2d Cir. 2006). We review the BIA’s denial of a motion to 2 2 reopen or to rescind an in absentia removal order for abuse4 1 of discretion. See Alrefae , 471 F.3d at 357. 2 A. Motion to Rescind 3 The agency’s regulations provide that motions to 4 rescind in absentiaorders of exclusion are not subject to 5 time or numerical limitations, but the alien must 6 nonetheless demonstrate that he had reasonable cause for his 7 failure to appear. See 8 8 C.F.R. § 1003.23(b)(4)(B); Matter of N-B- , 22 I.& N. Dec. 9 590, 591 (BIA 1999). Even though Singh was in exclusion 1 0 proceedings and there was no deadline applicable to his 1 1 motion to rescind, see Matter of N-B- , 22 I. & N. Dec. at 1 2 593, it does not follow that the BIA was foreclosed from 1 3 denying his motion as a matter of discretion, based on its 1 4 finding that Singh failed to exercise due diligence in the 1 5 eight years after he became aware he had been ordered 1 6 excluded. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). 1 7 This Court’s requirement that aliens exercise due diligence 1 8 in the equitable tolling context applies with equal force in 1 9 this situation. See Iavorski v. INS , 232 F.3d 124, 134 (2d 2 0 Cir. 2000); see also Wei Guang Wang v. BIA , 437 F.3d 270, 2 1 273 -274 (2d Cir. 2006) (“[I]t would be ironic, indeed, ifContrary to Singh’s argument, because the BIA reviews 2 an IJ’s discretionary decisions de novo , it did not act ultra viresor engage in impermissible factfinding by reaching the same conclusion based upon different reasoning and evidence in the record. See8 C.F.R. § 1003.1(d)(3)(ii); see also Matter of A-S-B- , 24 I. & N. Dec. 493, 498 (BIA 2008). 5 1 petitioners . . . who have remained in the United States 2 illegally following an order of deportation, were permitted 3 to have a second and third bite at the apple simply because 4 they managed to marry and have children while evading 5 authorities. This apparent gaming of the system in an effort 6 to avoid deportation is not tolerated by the existing 7 regulatory scheme.”). Thus, the agency reasonably denied 8 Singh’s motion to rescind based on his lack of due 9 diligence. See INS v. Abudu , 485 U.S. 94, 105, 107-08 2 1 0 (1988). 11 B. Motion to Reopen 1 2 The agency also did not abuse its discretion in denying 1 3 Singh’s motion to reopen. “A motion to reopen proceedings 1 4 shall state the new facts that will be proven at a hearing . 1 5 . . and shall be supported by affidavits and other 1 6 evidentiary material.” 8 C.F.R. § 1003.2(c)(1); see also 17 Twum , 411 F.3d at 58 n.2 (“[T]he BIA has also held that6 1 exclusion proceedings conducted in absentia may also be 2 reopened absent a showing of reasonable cause where the 3 respondent seeks asylum or withholding of removal and has 4 made a proper showing of changed country conditions creating 5 a reasonable likelihood of success on the merits.”). In his 6 motion, Singh merely stated his intent to apply for asylum 7 without providing any evidentiary support for his claim. 8 Thus, the agency reasonably determined that he failed to 9 demonstrate his prima facie eligibility for relief from 1 0 exclusion. See Abudu , 485 U.S. at 104-05; Matter of A-N- & 11 R-M-N- , 22 I.& N. Dec. 953, 956 (BIA 1999).

For the foregoing reasons, the motion to remand and the 12 1 3 petition for review are DENIED. As we have completed our 1 4 review, any stay of removal that the Court previously 1 5 granted in this petition is VACATED, and any pending motion 1 6 for a stay of removal in this petition is DISMISSED as moot. 1 7 Any pending request for oral argument in this petition is 1 8 DENIED in accordance with Federal Rule of Appellate 1 9 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 2 0 FOR THE COURT: 2 1 Catherine O’Hagan Wolfe, Clerk 22 23