Kaur v. Holder , 475 F. App'x 398 ( 2012 )

11-3239
Kaur v. Holder
BIA
A075 306 900
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 27th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 AMARJIT KAUR,
14 Petitioner,
15
16 v. 11-3239
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Amarjit Kaur, pro se, South Richmond
24 Hill, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Emily Anne
28 Radford, Assistant Director; Craig
29 A. Newell, Jr., Trial Attorney,
1 Office of Immigration Litigation,
2 United States Department of Justice,
3 Washington, D.C.
4 UPON DUE CONSIDERATION of this petition for review of a
5 decision of the Board of Immigration Appeals (“BIA”), it is
6 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
7 review is DENIED.
8 Amarjit Kaur, a native and citizen of India, seeks
9 review of a June 11, 2011, decision of the BIA denying her
10 motion to reopen. In re Amarjit Kaur, No. A075 306 900
11 (B.I.A. June 11, 2011). We assume the parties’ familiarity
12 with the underlying facts and procedural history of this
13 case.
14 We review the BIA’s denial of a motion to reopen for
15 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
16 (2d Cir. 2006) (per curiam). There is no dispute that
17 Kaur’s motion to reopen was untimely and number-barred.
18 See 8 U.S.C. § 1229a(c)(7)(A),(C)(i); see also 8 C.F.R.
19 § 1003.2(c)(2).
20 The time and number limitations applicable to motions
21 to reopen may be equitably tolled to accommodate claims of
22 ineffective assistance of counsel. See Cekic v. INS, 435
23 F.3d 167, 170 (2d Cir. 2006); see also Jin Bo Zhao v. INS,
2
1 452 F.3d 154, 159-60 (2d Cir. 2006) (per curiam) (holding
2 that the BIA erred in finding petitioner’s second motion to
3 reopen number-barred, because his first motion was denied
4 due to ineffective assistance). However, the movant must
5 demonstrate, inter alia, that she suffered actual prejudice
6 as a result of counsel’s ineffective performance.
7 Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994).
8 Kaur argued that her prior counsel provided ineffective
9 assistance by failing to pursue relief under the Convention
10 Against Torture (“CAT”) either during the pendency of her
11 appeal of the IJ’s denial of her motion to rescind her in
12 absentia order of removal, or in subsequent motions to
13 reopen. To show actual prejudice, Kaur was required to
14 “make a prima facie showing that [s]he would have been
15 eligible for the relief [sought] and that [s]he could have
16 made a strong showing in support of [her] application” if
17 not for her counsel’s ineffectiveness. Id.; see also
18 Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per
19 curiam). Kaur failed to make such a showing.
20 First, as the BIA noted, Kaur offered no evidence
21 indicating that she would have established her prima facie
22 eligibility for CAT relief at the time when her appeal was
23 pending before the BIA. See Pierre v. Gonzales, 502 F.3d
3
 1 109, 118–19 (2d Cir. 2007). Moreover, as the BIA noted,
2 Kaur did not make a prima facie showing that she would have
3 been eligible for CAT relief at the time when her former
4 counsel filed her prior motions to reopen, because she
5 failed to present any evidence indicating either that she
6 would be singled out for torture by Indian security forces,
7 or that a similarly-situated individual in her particular
8 circumstances–i.e., a Sikh and member of the Shiromani Akali
9 Dal Mann– would be subjected to torture. See Mu Xiang Lin
10 v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.
11 2005). Therefore, the BIA did not abuse its discretion in
12 denying Kaur’s motion to reopen.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
4