09-2852-ag

Singh v. Holder

BIA

A075 253 532

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

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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

New York, on the 5th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 ROSEMARY S. POOLER,

10 DEBRA ANN LIVINGSTON,

11 Circuit Judges. 

12 _______________________________________

13

14 KRISHAN SINGH

15 Petitioner, 

16

17 v. 09-2852-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Viney K. Gupta, Orange, CA.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; David V. Bernal, Assistant

28 Director; Yedidya Cohen, Trial

29 Attorney, Office of Immigration

30 Litigation, Civil Division, United

31 States Department of Justice,

32 Washington, D.C.
2

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 DISMISSED, in part, and DENIED, in part.

5 Petitioner Krishan Singh, a native and citizen of

6 India, seeks review of a June 19, 2009, order of the BIA

7 denying his motion to reopen. In re Krishan Singh, No. A075

8 253 532 (B.I.A. Jun. 19, 2009). We assume the parties’

9 familiarity with the underlying facts and procedural history

10 in this case.

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

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). Because Singh filed this, his fourth motion

14 before the agency, more than five years after the BIA’s

15 final order of removal, he was required to show an exemption

16 from the time and number limitations on motions to reopen. 

17 See 8 U.S.C. § 1229a(7)(C). 

18 Singh argues that the BIA erred in failing to equitably

19 toll the time limits on his motion to reopen on the basis

20 that he received ineffective assistance of counsel. Because

21 Singh did not raise the issue of ineffective assistance of

22 counsel in his 2009 motion to the BIA (the denial of which

23 is the subject of this petition for review), we are unable
3

1 to address it and this petition is untimely for review of 

2 the BIA’s denial the last motion to reopen in which he

3 raised the issue. See Stone v. INS, 514 U.S. 386, 405

4 (1995) (explaining that courts should treat each petition

5 for review as challenging only the BIA decision from which

6 it was timely filed); Garcia-Martinez v. Dep’t of Homeland

7 Security, 448 F.3d 511, 513-14 (2d Cir. 2006) (providing

8 that, where a petitioner fails to raise an ineffective

9 assistance of counsel claim with the BIA, the petitioner

10 forfeits that claim in this Court). 

11 Singh raises other grounds for why his motion to reopen

12 was excepted from the time and number limits on motions to

13 reopen, but he raised those arguments for the first time in

14 his reply brief. Accordingly, we decline to address them.

15 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545

16 n.7 (2d Cir. 2005) (providing that issues not sufficiently

17 argued in the briefs are considered waived); Knipe v.

18 Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (“Arguments may

19 not be made for the first time in a reply brief.”).

20 Because Singh’s motion to reopen was not filed within

21 the ninety day limit on motions to reopen, or the one year

22 limit on motions to reopen to apply for relief as a battered
4

1 spouse, the BIA did not abuse its discretion in denying his

2 motion to reopen as untimely. See 8 U.S.C.

3 § 1229a(c)(7)(C)(i), (iv)(III).

4 Singh argues that the BIA should have exercised its sua

5 sponte authority, see 8 C.F.R. § 1003.2(a), to grant his

6 motion without regard to its timeliness. However, such a

7 decision is “entirely discretionary,” and we lack

8 jurisdiction to consider it. Ali v. Gonzales, 448 F.3d

9 515, 518 (2d Cir. 2006). Nor is there any indication that

10 the BIA’s decision not to reopen sua sponte was based on any

11 legal error, see Mahmood v. Holder, 570 F.3d 466, 469 (2d

12 Cir. 2009) (providing that we have jurisdiction to review

13 the agency’s decision not to exercise its sua sponte

14 authority where the BIA misperceived the legal background).

15 Finally, Singh was not deprived of due process. The BIA

16 did not abuse its discretion in denying his motion to reopen

17 as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i), (iv)(III).

18 For the foregoing reasons, the petition for review is

19 DISMISSED in part and DENIED in part. Singh’s motion for a

20 stay of removal is DENIED as moot. 

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23