Singh v. Holder , 455 F. App'x 85 ( 2012 )


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  • 10-350-ag
    Singh v. Holder
    BIA
    A072 409 681
    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
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 19th day of January, two thousand twelve.
    PRESENT:
    GUIDO CALABRESI,
    GERARD E. LYNCH,
    RAYMOND J. LOHIER, JR.,
    Circuit Judges.
    _______________________________________
    BARIJINDER SINGH,
    Petitioner,
    v.                                    10-350-ag
    NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
    Respondent.
    ______________________________________
    FOR PETITIONER:                Martin Avila Robles, Los Angeles,
    California.
    FOR RESPONDENT:                Tony West, Assistant Attorney
    General; John S. Hogan, Assistant
    Director; Michael C. Heyse, Trial
    Attorney, Office of Immigration
    Litigation, United States Department
    of Justice, Washington D.C.
    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 Barijinder Singh, a native and citizen of
    India, seeks review of the December 30, 2009, order of the
    BIA denying his motion to reopen his removal proceedings.
    In re Barijinder Singh, No. A072 409 681 (B.I.A. Dec. 30,
    2009).   We assume the parties’ familiarity with the
    underlying facts and procedural history in this case.    We
    review the BIA’s denial of a motion to reopen for abuse of
    discretion.    See Ali v. Gonzales, 
    448 F.3d 515
    , 517 (2d Cir.
    2006).
    I.   Time and Number Bars
    Singh’s motion to reopen was indisputably untimely and
    number-barred as it was his fourth motion to reopen and he
    filed it more than thirteen years after he was ordered
    deported and two years after the BIA’s last decision in his
    case.    See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
    § 1003.2(c)(2).    Contrary to Singh’s argument, the
    regulation accounts for cases that pre-date its enactment by
    requiring motions to reopen to be filed either within ninety
    2
    days “or on or before September 30, 1996, whichever is
    later.”   8 C.F.R. § 1003.2(c)(2).      Singh’s motion to reopen
    clearly does not meet that test.
    II. Changed Country Conditions
    There are no time limitations on motions to reopen if
    the alien establishes materially “changed country conditions
    arising in the country of nationality.”       8 U.S.C.
    § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
    Singh submitted, with his motion to reopen, U.S. State
    Department Reports on Human Rights Practices in India, along
    with other documentary evidence, regarding abuses by the
    Indian and Punjab police and security forces related to the
    repression of Sikh militancy, including torture,
    disappearances, and extra-judicial killings during the
    period between 1993 and 1995.       Singh also submitted
    documentary evidence from the period 2004 to 2009 indicating
    that Sikh activists and persons suspected of aiding
    terrorists remain subject to torture, disappearance, and
    extra-judicial killing.   The BIA found that while this
    documentary evidence “reflect[ed] some political changes in
    India,” it did “not establish any change with regard to the
    treatment of Sikh militants or persons suspected of aiding
    3
    terrorists.”
    Singh’s challenges to the BIA’s country conditions
    finding are unpersuasive.   First, the BIA’s review of the
    documentary evidence, while succinct, was sufficient to
    demonstrate that it had “given reasoned consideration to the
    petition, and made adequate findings.”    Gao v. Mukasey, 
    508 F.3d 86
    , 87 (2d Cir. 2007) (internal quotation marks
    omitted); see also Wang v. BIA, 
    437 F.3d 270
    , 275 (2d Cir.
    2006) (rejecting argument that the BIA must “expressly parse
    or refute on the record each individual argument or piece of
    evidence offered by the petitioner” (internal quotation
    marks omitted)).   Second, we reject Singh’s objection to the
    use of country conditions at the time of his 1995 hearing as
    a baseline, because without such a baseline it would be
    impossible to determine whether country conditions had in
    fact changed.   See 8 C.F.R. § 1003.2(c)(3)(ii) (permitting
    motions to reopen “based on changed circumstances arising in
    the country of nationality” (emphasis added)).
    III. Convention Against Torture (“CAT”)
    Because Singh’s deportation order became final in 1996,
    see 8 C.F.R. § 1003.39, and he did not file the present
    motion to reopen until 2009, his motion to reopen for the
    purposes of pursuing CAT relief was untimely.    See 8 C.F.R.
    4
    § 208.18(b)(2)(i) (requiring an alien with an order of
    deportation that became final prior to March 22, 1999 to
    file a motion to reopen to pursue CAT relief before June 21,
    1999).    Thus, Singh’s argument that he is entitled to
    reopening to pursue CAT relief because such relief was not
    available at the time of his initial hearing lacks merit.
    IV. Adjustment of Status
    To the extent Singh challenges the BIA’s decision not to
    reopen his case sua sponte to permit him to adjust his
    status, we lack jurisdiction to review that decision, as sua
    sponte reopening under 8 C.F.R. § 1003.2(a) is “entirely
    discretionary.”    
    Ali, 448 F.3d at 518
    .
    For the foregoing reasons, the petition for review is
    DENIED.    As we have completed our review, any pending motion
    for a stay of removal in this petition is DISMISSED as moot.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    5
    

Document Info

Docket Number: 10-350-ag

Citation Numbers: 455 F. App'x 85

Judges: Calabresi, Gerard, Guido, Lohier, Lynch, Raymond

Filed Date: 1/19/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023