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 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 5 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **ROSEMARY S. POOLER,** 9 **DEBRA ANN LIVINGSTON,** 10 Circuit Judges **.** 11

**_______________________________________** 12 13 **KRISHAN SINGH** 14 Petitioner**,** 15 16 **v. 09-2852-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**______________________________________** 22 23 **FOR PETITIONER: Viney K. Gupta, Orange, CA.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; David V. Bernal, Assistant** 27 **Director; Yedidya Cohen, Trial** 28 **Attorney, Office of Immigration** 29 **Litigation, Civil Division, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON 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 DISMISSED, in part, and DENIED, in part. 4 Petitioner Krishan Singh, a native and citizen of 5 India, seeks review of a June 19, 2009, order of the BIA 6 denying his motion to reopen. In re Krishan Singh , No. A075 7 253 532 (B.I.A. Jun. 19, 2009). We assume the parties’ 8 familiarity with the underlying facts and procedural history 9 in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006)

. Because Singh filed this, his fourth motion 13 before the agency, more than five years after the BIA’s 14 final order of removal, he was required to show an exemption 15 from the time and number limitations on motions to reopen. 16

See8 U.S.C. § 1229a(7)(C). 17 Singh argues that the BIA erred in failing to equitably 18 toll the time limits on his motion to reopen on the basis 19 that he received ineffective assistance of counsel. Because 20 Singh did not raise the issue of ineffective assistance of 21 counsel in his 2009 motion to the BIA (the denial of which 22 is the subject of this petition for review), we are unable 233 to address it and this petition is untimely for review of 1 the BIA’s denial the last motion to reopen in which he 2 raised the issue. See Stone v. INS , 514 U.S. 386, 405 3 (1995) (explaining that courts should treat each petition 4 for review as challenging only the BIA decision from which 5 it was timely filed); Garcia-Martinez v. Dep’t of Homeland 6 Security, 448 F.3d 511, 513-14 (2d Cir. 2006) (providing 7 that, where a petitioner fails to raise an ineffective 8 assistance of counsel claim with the BIA, the petitioner 9 forfeits that claim in this Court). 10 Singh raises other grounds for why his motion to reopen 11 was excepted from the time and number limits on motions to 12 reopen, but he raised those arguments for the first time in 13 his reply brief. Accordingly, we decline to address them. 14 See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 n.1, 545 15 n.7 (2d Cir. 2005) (providing that issues not sufficiently 16 argued in the briefs are considered waived); Knipe v. 17 Skinner, 999 F.2d 708, 711 (2d Cir. 1993) (“Arguments may 18 not be made for the first time in a reply brief.”). 19 Because Singh’s motion to reopen was not filed within 20 the ninety day limit on motions to reopen, or the one year 21 limit on motions to reopen to apply for relief as a battered 224 spouse, the BIA did not abuse its discretion in denying his 1 motion to reopen as untimely. See8 U.S.C. 2 § 1229a(c)(7)(C)(i), (iv)(III). 3 Singh argues that the BIA should have exercised its sua 4 sponteauthority, see8 C.F.R. § 1003.2(a), to grant his 5 motion without regard to its timeliness. However, such a 6 decision is “entirely discretionary,” and we lack 7 jurisdiction to consider it. Ali v. Gonzales , 448 F.3d 8 515, 518 (2d Cir. 2006). Nor is there any indication that 9 the BIA’s decision not to reopen sua spontewas based on any 10 legal error, see Mahmood v. Holder , 570 F.3d 466, 469 (2d 11 Cir. 2009) (providing that we have jurisdiction to review 12 the agency’s decision not to exercise its sua sponte 13 authority where the BIA misperceived the legal background). 14 Finally, Singh was not deprived of due process. The BIA 15 did not abuse its discretion in denying his motion to reopen 16 as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(i), (iv)(III). 17 For the foregoing reasons, the petition for review is 18 DISMISSED in part and DENIED in part. Singh’s motion for a 19 stay of removal is DENIED as moot. 20

FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23