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.

09-1419-ag 

Singh v. Holder

BIA

Weisel, IJ

A072 764 161

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 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 Attorney
2

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

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

11 is DENIED. Petitioner’s motion to remand is also DENIED.

12 Petitioner Yoga Singh, a native and citizen of India,

13 seeks review of the March 17, 2009, order of the BIA,

14 affirming the October 3, 2008, decision of Immigration Judge

15 (“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’g No. A072 764 161 (Immig. Ct. N.Y. City Oct. 3, 2008). 

18 Singh also moves this Court to remand his case to the BIA

19 pending adjudication of his application for adjustment of

20 status. We assume the parties’ familiarity with the

21 underlying facts and procedural history of the case.

22 I. Motion to Remand

23 As a preliminary matter, we will deny Singh’s motion

24 for a “Continuance/Remand.” Singh alleges that remand is

25 appropriate because he is eligible for adjustment of status

26 under Matter of Yauri, 25 I.& N. Dec. 103 (BIA 2009), and
3

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

10 reopen in absentia exclusion orders are governed by

11 different rules depending on whether the movant seeks to

12 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.

14 & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly,

15 when, as here, an alien files a motion that seeks both

16 rescission of an in absentia exclusion order, and reopening

17 of proceedings to apply for new relief, we treat the BIA’s

18 decision as having denied distinct motions to rescind and to

19 reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.

20 2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n.1

21 (2d Cir. 2006). We review the BIA’s denial of a motion to

22 reopen or to rescind an in absentia removal order for abuse
4

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 absentia orders 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

10 proceedings and there was no deadline applicable to his

11 motion to rescind, see Matter of N-B-, 22 I. & N. Dec. at

12 593, it does not follow that the BIA was foreclosed from

13 denying his motion as a matter of discretion, based on its

14 finding that Singh failed to exercise due diligence in the

15 eight years after he became aware he had been ordered

16 excluded. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). 

17 This Court’s requirement that aliens exercise due diligence

18 in the equitable tolling context applies with equal force in

19 this situation. See Iavorski v. INS, 232 F.3d 124, 134 (2d

20 Cir. 2000); see also Wei Guang Wang v. BIA, 437 F.3d 270,

21 273 -274 (2d Cir. 2006) (“[I]t would be ironic, indeed, if
 Contrary to Singh’s argument, because the BIA reviews 2

an IJ’s discretionary decisions de novo, it did not act

ultra vires or engage in impermissible factfinding by

reaching the same conclusion based upon different reasoning

and evidence in the record. See 8 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

10 (1988).

11 B. Motion to Reopen

12 The agency also did not abuse its discretion in denying

13 Singh’s motion to reopen. “A motion to reopen proceedings

14 shall state the new facts that will be proven at a hearing .

15 . . and shall be supported by affidavits and other

16 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 that
6

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

10 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).

12 For the foregoing reasons, the motion to remand and the

13 petition for review are DENIED. As we have completed our

14 review, any stay of removal that the Court previously

15 granted in this petition is VACATED, and any pending motion

16 for a stay of removal in this petition is DISMISSED as moot. 

17 Any pending request for oral argument in this petition is

18 DENIED in accordance with Federal Rule of Appellate

19 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

23