18-2158 Singh v. Barr BIA Cheng, IJ A072 765 492

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.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 5th day of August, two thousand twenty. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 KAMALJIT SINGH, 14 Petitioner, 15 16 v. 18-2158 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Melinda M. Basaran, BK Law Firm 24 LLC, Clifton, NJ. 25 26 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 27 General; Jeffery R. Leist, Senior 1 Litigation Counsel; Kathleen Kelly 2 Volkert, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is DENIED.

10 Petitioner Kamaljit Singh, a native and citizen of India,

11 seeks review of a June 27, 2018 decision of the BIA affirming

12 a January 31, 2018 decision of an Immigration Judge (“IJ”)

13 denying Singh’s motion to rescind his in absentia exclusion

14 order and reopen his proceedings to allow him to apply for

15 asylum, withholding of removal, and protection under the

16 Convention Against Torture. In re Kamaljit Singh, No. A 072

17 765 492 (B.I.A. Jun. 27, 2018), aff’g No. A 072 765 492 (Immig.

18 Ct. N.Y.C. Jan. 31, 2018). We assume the parties’

19 familiarity with the underlying facts and procedural history.

20 Under the circumstances of this case, we have considered

21 both the IJ’s and BIA’s decisions “for the sake of

22 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

524, 528 (2d Cir. 2006). We review the denial of a motion

24 to rescind an exclusion order and reopen proceedings for abuse 2 1 of discretion, see Twum v. INS,

(2d Cir.

2 2005), and we review any finding regarding changed country

3 conditions for substantial evidence, see Jian Hui Shao v.

4 Mukasey,

, 168–69 (2d Cir. 2008). The agency

5 abuses its discretion if its decision “provides no rational

6 explanation, inexplicably departs from established policies,

7 is devoid of any reasoning, or contains only summary or

8 conclusory statements; that is to say, where the [agency] has

9 acted in an arbitrary or capricious manner.” Ke Zhen Zhao

10 v. U.S. Dep’t of Justice,

, 93 (2d Cir. 2001)

11 (internal citations omitted).

12 Here, the agency did not abuse its discretion in denying

13 Singh’s motion because Singh did not establish (1) reasonable

14 cause for failing to appear at his exclusion hearing or

15 (2) changed country conditions to warrant reopening to apply

16 for asylum.

17 I. Motion to Rescind In Absentia Exclusion Order

18 Exclusion orders entered in absentia may be rescinded

19 upon a showing of “reasonable cause for [the] failure to

20 appear.”

(b)(4)(iii)(B); Twum,

at 58; see also In re N-B-,

, 592–93

3 1 (B.I.A. 1999) (noting that the time restrictions and stricter

2 “exceptional circumstances” standard imposed on motions to

3 reopen deportation proceedings do not apply to exclusion

4 proceedings). One such cause is where the alien did not

5 receive proper notice of the hearing. See Matter of Haim,

6

(B.I.A. 1988). While Singh argues

7 that this was the reason he failed to attend his hearing, the

8 record says otherwise.

9 In 1995, Singh was personally served notice of his

10 May 7, 1996 hearing. His attorney also received notice of

11 the hearing by mail. And before denying reopening, the IJ

12 listened to the recording of the original proceeding and found

13 that Singh’s prior counsel was present and told the previous

14 IJ that he had mailed a copy of the hearing notice to Singh’s

15 last known address, but Singh did not respond. Accordingly,

16 the record contradicts Singh’s allegation that he did not

17 receive proper notice. And, in any event, Singh’s more than

18 twenty-year delay in moving to rescind his exclusion order

19 and reopen his proceedings undermines his claim that he would

20 have appeared had he received proper notice.

4 1 II. Changed Country Conditions

2 An alien seeking to reopen proceedings to apply for new

3 relief generally may file a motion to reopen no later than

4 90 days after the final administrative decision was rendered.

5 See 8 U.S.C. § 1229a(c)(7)(C)(i);

(b)(1).

6 Singh’s 2017 motion would seem to be untimely, then, since it

7 was filed twenty-one years after he was ordered excluded in

8 absentia. But there is an exception. The time limit does

9 not apply to a motion to reopen seeking asylum “based on

10 changed country conditions arising in the country of

11 nationality or the country to which removal has been ordered,

12 if such evidence is material and was not available and would

13 not have been discovered or presented at the previous

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

15

(b)(4)(i).

16 “In determining whether evidence accompanying a motion

17 to reopen demonstrates a material change in country

18 conditions that would justify reopening, [the agency]

19 compare[s] the evidence of country conditions submitted with

20 the motion to those that existed at the time of the merits

21 hearing below.” In re S-Y-G-,

, 253

5 1 (B.I.A. 2007). “Change that is incremental or incidental

2 does not meet” this changed conditions requirement for late

3 motions.

.

4 Singh argues broadly that his motion to reopen falls

5 within this exception because conditions for Sikhs in India

6 have worsened since his original removal proceeding. To

7 support his claim, Singh submitted four documents: (i) a

8 November 2015 news article on recent anti-Sikh violence in

9 India, (ii) an October 2015 news article concerning an

10 increase in Sikh-led protests, (iii) the 2016/2017 Amnesty

11 International Report for India, and (iv) the 2016 U.S. State

12 Department Human Rights Report for India. But none of these

13 reports demonstrates the type of changed circumstances

14 necessary for Singh to reopen his petition.

15 For instance, the November 2015 news article indicates

16 that nothing has changed in the treatment of Sikhs in India

17 since a 1984 massacre. Similarly, the 2016 State Department

18 Report notes that there was societal violence based on

19 religious affiliation in India, but does not indicate that

20 Sikhs were targeted or that violence against Sikhs has

21 increased. And the Amnesty International Report does not

6 1 mention violence against Sikhs beyond the 1984 massacre.

2 The country conditions evidence at the time of Singh’s

3 1996 hearing—which consisted solely of a 1995 State

4 Department Report on India—is not materially different.

5 Violence against Sikhs and by Sikh militants who wanted a

6 separatist state was common. Given this account of general

7 violence, as compared to the more recent reports of religious

8 tensions with Sikhs, and the absence of any other country

9 conditions evidence preceding Singh’s 1996 hearing, the

10 agency did not abuse its discretion in determining that Singh

11 failed to establish a material change in conditions for Sikhs

12 to warrant reopening. See 8 U.S.C. § 1229a(c)(7)(C).

13 For the foregoing reasons, the petition for review is

14 DENIED. All pending motions and applications are DENIED and

15 stays VACATED.

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court

7