Singh v. Holder , 488 F. App'x 476 ( 2012 )

11-3427
Singh v. Holder
BIA
A075 246 640
A075 260 832
A075 260 833
A075 260 834
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 New
4 York, on the 17th day of July, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11
12
13 CHARAN SINGH, AKA GURCHARAN MULTANI,
14 et al.,
15 Petitioners,
16
17 v. 11-3427
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23
24 FOR PETITIONERS: Charan Singh, pro se.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Thomas B. Fatouros,
28 Senior Litigation Counsel; James A.
29 Hurley, Attorney, Office of Immigration
30 Litigation, United States Department of
31 Justice, 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 is
4 DENIED.
5 Petitioners Charan Singh, Joginder Kaur, Bikramjit Singh
6 and Gurjaspreet Singh, natives and citizens of India, seek
7 review of an August 3, 2011, decision of the BIA denying their
8 motion to reopen their immigration proceedings. In re Charan
9 Singh, Joginder Kaur, Bikramjit Singh and Gurjaspreet Singh,
10 Nos. A075 246 640, A075 260 832/833/834 (B.I.A. Aug. 3, 2011).
11 We assume the parties’ familiarity with the underlying facts
12 and procedural history of the case.
13 We review the BIA’s denial of a motion to reopen for
14 abuse of discretion, mindful of the Supreme Court’s admonition
15 that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d
16 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,
17 322-23 (1992)). Generally, a motion to reopen must be filed
18 within 90 days of the final administrative order. See 8
19 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The
20 90-day time period may be equitably tolled when the motion is
21 based on a claim of ineffective assistance of counsel. See
22 Rashid v. Mukasey, 533 F.3d 127, 130-32 (2d Cir. 2008); Jin Bo
2
1 Zhao v. INS, 452 F.3d 154, 159 (2d Cir. 2006). In order to
2 warrant equitable tolling on the basis of ineffective
3 assistance of counsel, an alien claiming ineffective
4 assistance “must show prejudice resulting from counsel’s
5 alleged deficiencies.” Debeatham v. Holder, 602 F.3d 481, 485
6 (2d Cir. 2010); see also Vartelas v. Holder, 620 F.3d 108, 113
7 (2d Cir. 2010) (“Whatever the provenance of the right [to
8 counsel in immigration proceedings], an ineffective-assistance
9 claim cannot be established without some showing of
10 prejudice.”).
11 In this case, because the Petitioners failed to show that
12 they were prejudiced by their attorney’s allegedly deficient
13 performance, the BIA did not abuse its discretion in denying
14 their motion to reopen as untimely. Petitioners fail to
15 explain how the letter from the Global Human Rights Commission
16 (“GHRC”) would have rehabilitated the numerous inconsistencies
17 relied on by the agency in finding them not credible. This is
18 particularly damaging to the Petitioners’ claim because, in
19 its decision dismissing their appeal and denying their first
20 motion to reopen their immigration proceedings, the BIA
21 concluded that the letter from the GHRC was not sufficient to
22 overcome the Petitioners’ credibility issues that served as
3
1 the basis for the adverse credibility determination.
2 Petitioners also failed to demonstrate how they were
3 prejudiced by their counsel’s concession of their
4 removability. They do not dispute that Singh’s asylum status
5 was terminated, which resulted in the termination of the
6 asylum status of the remaining petitioners, because that
7 status was derivative of Singh’s. See 8 C.F.R § 208.24(d)
8 (“The termination of asylum status for the person who was the
9 principal applicant shall result in termination of the asylum
10 status of a spouse or child whose status was based on the
11 asylum application of the principal.”). Nor do they point to
12 any basis in the record upon which they could assert that they
13 had legal status in the United States at the time that their
14 attorney conceded their removability. Accordingly,
15 Petitioners were not prejudiced by this concession.
16 Finally, nothing in the record suggests that Petitioners
17 were prejudiced by their attorney’s failure to seek to
18 consolidate review of their removal proceedings with review of
19 the Special Agricultural Worker application filed by Singh
20 under a false name. Petitioners fail to articulate precisely
21 what benefit they were denied, or how review of that denial by
22 the BIA would have benefitted them, or otherwise precluded
4
1 their removal from the United States. Accordingly, they
2 failed to demonstrate prejudice on this issue as well.
3 Because the Petitioners failed to demonstrate the prejudice
4 required for equitable tolling, the BIA did not abuse its
5 discretion by denying their motion to reopen as untimely. See
6 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2); Debeatham,
7 602 F.3d at 485.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument in
13 this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
5