17-4119 Bajwa v. Barr BIA A073 674 641

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 15th day of July, two thousand nineteen.

PRESENT: JON O. NEWMAN, DEBRA ANN LIVINGSTON, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

JASPAL BAJWA, Petitioner,

v. 17-4119 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, P.C., Jackson Heights, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Melissa Neiman- Kelting, Assistant Director; Melissa K. Lott, 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 Jaspal Bajwa, a native and citizen of India,

seeks review of a December 1, 2017, decision of the BIA,

denying his motion to reopen. In re Jaspal Bajwa, No. A073

674 641 (B.I.A. Dec. 1, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

The applicable standards of review are well established.

See Jian Hui Shao v. Mukasey,

(2d Cir.

2008). In his motion to reopen, Bajwa asserted that the time

and number limitations on his motion to reopen to apply for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”) should be excused because

conditions for members of the All India Sikh Students

Federation (“AISSF”) in India had worsened and his former

counsel had been ineffective.

It is undisputed that, unless an exception to the time

and number limitations applies, Bajwa’s 2017 motion to reopen 2 was untimely and number barred because this third motion to

reopen was filed more than 19 years after his deportation

order became final in 1997, see 8 U.S.C. § 1229a(c)(7)(C)(i);

(c)(2), and it was filed more than 17 years

after the June 1999 deadline for seeking reopening after CAT

relief became available, see

(b)(2)(i). As

discussed below, the BIA did not abuse its discretion in

denying the motion as time and number barred because no

exceptions applied.

Changed Country Conditions

The time and number limitations for filing a motion to

reopen asylum proceedings do not apply if the motion is “based

on changed country conditions arising in the country of

nationality or the country to which removal has been ordered,

if such evidence is material and was not available and would

not have been discovered or presented at the previous

proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

(c)(3)(ii). “In determining whether evidence

accompanying a motion to reopen demonstrates a material

change in country conditions that would justify reopening,

[the agency] compare[s] the evidence of country conditions 3 submitted with the motion to those that existed at the time

of the merits hearing below.” In re S-Y-G-,

(BIA 2007). The BIA did not err in finding that

Bajwa’s evidence was insufficient to establish worsened

conditions for members of AISSF since his 1996 hearing because

the evidence discussed incidents of harm from the 1980s and

1990s but no recent harm to Sikhs or Sikh organizations, such

as AISSF. Therefore, the BIA reasonably concluded that

Bajwa’s evidence failed to demonstrate a material change in

conditions in India to excuse the untimely and number barred

filing of his motion to reopen to apply for asylum and

withholding of removal. See 8 U.S.C. § 1229a(c)(7)(A), (C).

Equitable Tolling

Nor did the BIA err in declining to excuse the time and

number limitations based on Bajwa’s ineffective assistance of

counsel claim. As an initial matter, Bajwa does not

challenge the BIA’s dispositive and reasonable finding that

his ineffective assistance claim was foreclosed because he

failed to comply with Matter of Lozada,

(BIA 1988), which requires the movant to (1) file an affidavit

detailing his agreement with former counsel and (2) submit 4 proof that he notified former counsel and the proper

disciplinary authority of his allegations. See Jian Yun

Zheng v. U.S. Dep’t of Justice,

(2d Cir.

2005); see also Yueqing Zhang v. Gonzales,

, 541

n.1, 545 n.7 (2d Cir. 2005) (concluding that petitioner waived

issues and claims not raised in his brief). Further, the BIA

did not err in finding that Bajwa did not exercise due

diligence in pursuing his ineffective assistance claim as

required because he failed to describe taking any action in

his deportation proceedings for more than a decade preceding

his motion to reopen. See Rashid v. Mukasey,

(2d Cir. 2008) (requiring a noncitizen to demonstrate

“due diligence” in pursuing his claim during “both the period

of time before the ineffective assistance of counsel was or

should have been discovered and the period from that point

until the motion to reopen is filed”); see also Jian Hua Wang

v. BIA,

(2d Cir. 2007) (explaining that

“petitioner bears the burden of proving that he has exercised

due diligence in the period between discovering the

ineffectiveness of his representation and filing the motion”

and citing several cases in which this Court has held that “a 5 petitioner who waits two years or longer to take steps to

reopen a proceeding has failed to demonstrate due

diligence”).

Sua Sponte Reopening Authority

Because Bajwa did not demonstrate that the time and

number limitations applicable to his motions should be

excused, “his motion to reopen could only be considered upon

exercise of the [BIA’s] sua sponte authority.” Mahmood v.

Holder,

(2d Cir. 2009). We lack

jurisdiction to review the agency’s “entirely discretionary”

decision declining to reopen proceedings sua sponte. Ali v.

Gonzales,

(2d Cir. 2006). However, “where

the Agency may have declined to exercise its sua sponte

authority because it misperceived the legal background and

thought, incorrectly, that a reopening would necessarily

fail, remand to the Agency for reconsideration in view of the

correct law is appropriate.” Mahmood,

.

A remand is not warranted here. The BIA properly declined

to reopen sua sponte to permit Bajwa to avoid the June 1999

deadline to file a late motion to reopen to apply for CAT

relief. See In re G-D-,

(BIA 6 1999) (“[W]e invoke our sua sponte authority sparingly,

treating it not as a general remedy for any hardships created

by enforcement of the time and number limits in the motions

regulations, but as an extraordinary remedy reserved for

truly exceptional situations.”); see also In re G-C-L-,

(BIA 2002) (declining to continue

reopening proceedings sua sponte to permit applications for

asylum based on a change in law that occurred more than five

years earlier).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court

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