Singh v. Barr ( 2020 )

18-51
Singh v. Barr
BIA
Hom, IJ
A205 071 934
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 TO 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
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 22nd day of January, two thousand twenty.
PRESENT:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________
GURPELLT SINGH, AKA GURPREET
SINGH,
Petitioner,
v. 18-51
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy N. Gell, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant
Attorney General; Mary Jane
Candaux, Assistant Director;
Matthew Connelly, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Gurpellt Singh, a native and citizen of India,
seeks review of a December 13, 2017 decision of the BIA
affirming a June 28, 2017 decision of an Immigration Judge
(“IJ”) denying Singh’s motion to reopen proceedings and
reissue the IJ’s decision denying Singh’s application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Singh, No. A 205
071 934 (B.I.A. Dec. 13, 2017), aff’g No. A 205 071 934
(Immig. Ct. N.Y. City June 28, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed both the IJ’s and the BIA’s opinions.
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d
Cir. 2006). We review the denial of a motion to reopen and
reissue for abuse of discretion. See Ping Chen v. U.S. Att’y
Gen., 502 F.3d 73, 75 (2d Cir. 2007).
Where, as here, an alien had notice of the proceedings,
2
the agency does not abuse its discretion in denying a motion
to reissue if the agency properly served the order, regardless
of whether the alien actually received it. See id. at 76–77
(“Once the BIA has performed its duty of serving the order,
the time for appeal and motions to reopen begins to run, even
if the order miscarries in the mail or the alien does not
receive it for some other reason that is not the BIA’s
fault.”); see also Xue Hui Lin v. Holder, 380 F. App’x 28, 30
(2d Cir. 2010) (applying the same standard to IJ orders). An
IJ’s decision “shall be served on the parties by first class
mail to the most recent address contained in the Record of
Proceeding or by personal service.” 8 C.F.R. § 1003.37(a).
Service on a party also may be accomplished by service on his
or her attorney. Id. § 1292.5(a).
Singh advances three reasons that the agency may have
abused its discretion in declining to reopen and reissue the
IJ’s decision. Each is unavailing. First, he argues that
the decision was not properly addressed, because, in addition
to the correct firm name and mailing address, it included the
name of attorney Veerat Kalaria. However, “the record shows
that []he did not present . . . [this] argument[] to the BIA,
3
so the BIA can hardly be faulted for failing to address [it].”
Ping Chen, 502 F.3d at 77. Singh asserted in his BIA appeal
that he still had not received the IJ decision (which would
have notified him it was addressed to Kalaria) because “the
Judge’s clerk is away.” Certified Administrative Record at
13. This was the same claim he made more than seven weeks
earlier in the motion to reopen. In any event, Kalaria is
an associate at Gell & Gell, and Singh does not argue that
Kalaria was not involved in his case, nor does he argue that
the letter was misdirected within the law firm.
Second, Singh notes that the decision cover letter
identified him as “Gurpellt” Singh without further stating
that he is also known as “Gurpreet.” But his name was not
part of the address. He does not argue that the firm received
the letter but misunderstood its import because it lacked the
alternate spelling of his name. Nor would such an argument
be reasonable, given that the name Gurpellt was used
throughout the agency proceedings and the letter included
Singh’s alien registration number.
Third, Singh argues that his strong interest in pursuing
his case, coupled with his prompt motion to reopen upon
4
learning of the IJ’s decision, suggests that his attorney
must not have received it. But he did not present any direct
evidence, such as an affidavit from his law firm, asserting
that the decision was not received. And while his interest
in pursuing the case may be evidence that the decision may
not have been mailed properly, it is circumstantial, and the
agency “may reasonably accord less weight to . . . [evidence]
of non-receipt than to its own records establishing that the
[decision] was in fact mailed.” Ping Chen, 502 F.3d at 77.
Accordingly, because the agency did not err in applying
a presumption or declining to credit counsel’s uncorroborated
assertions of non-receipt, it did not abuse its discretion by
denying the motion to reissue. See id. at 75–77. We do not
reach Singh’s arguments regarding his eligibility for relief
from removal because he failed to exhaust those claims by
timely appealing to the BIA. See 8 U.S.C. § 1252(d)(1) (“A
court may review a final order of removal only if . . . the
alien has exhausted all administrative remedies available to
the alien as of right . . . .”); Poole v. Mukasey, 522 F.3d
259, 263 (2d Cir. 2008) (“[T]he INA’s exhaustion requirement
constitutes a clear jurisdictional bar, and admits of no
5
exceptions.” (internal quotation marks and citation
omitted)).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
6