18-3300 Singh v. Rosen

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 12th day of January, two thousand twenty-one.

PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

BILBIR SINGH, AKA BALWINDER SINGH, Petitioner,

-v- 18-3300

JEFFREY A. ROSEN, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. 1

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1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Attorney General Jeffrey A. Rosen is substituted for former Attorney General William P. Barr as the respondent in this case. FOR PETITIONER: VISUVANATHAN RUDRAKUMARAN (Richard W. Chen, on the brief), New York, NY.

FOR RESPONDENT: WILLIAM K. LANE III, Trial Attorney; Elizabeth R. Chapman, Trial Attorney; Office of Immigration Litigation, for Jeffrey Bossert Clark, Acting Assistant Attorney General, 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 GRANTED, the BIA's decision is VACATED,

and the matter is REMANDED for further proceedings.

Petitioner Bilbir Singh, a native and citizen of India, seeks review of an

October 3, 2018 decision of the BIA affirming a February 23, 2018 decision of an

Immigration Judge ("IJ") denying Singh's motion to reopen to apply for asylum,

withholding of removal, and protection under the Convention Against Torture ("CAT").

In re Bilbir Singh, No. A 071 040 540 (B.I.A. Oct. 3, 2018), aff'g No. A 071 040 540 (Immig.

Ct. N.Y. City Feb. 23, 2018). We assume the parties' familiarity with the underlying

facts and procedural history.

Under the circumstances, we review the IJ's decision as modified by the

BIA, i.e., minus the findings on which the BIA declined to rely. See Xue Hong Yang v.

U.S. Dep't of Justice,

(2d Cir. 2005). Here, the BIA affirmed only the IJ's

discretionary denial of reopening, holding: "We agree with the [IJ] that, even if the

2 [petitioner] had otherwise demonstrated that reopening is warranted, he has not shown

that he merits a favorable exercise of discretion." Certified Administrative R. at 3.

Accordingly, only the BIA's affirmance of the IJ's discretionary denial of Singh's motion

to reopen is properly before us.

We review the agency's denial of a motion to reopen for abuse of

discretion. See Kaur v. BIA,

(2d Cir. 2005) (per curiam). An abuse of

discretion "may be found in those circumstances where the [BIA's] decision provides no

rational explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements; that is to say, where the

[BIA] has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of

Justice,

, 93 (2d Cir. 2001) (citations omitted).

An alien seeking to reopen proceedings to apply for new relief may file a

motion to reopen no later than 90 days after the date on which the final administrative

decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);

(b)(1). It is

undisputed that Singh's 2017 motion to reopen was filed 24 years after the IJ ordered

him deported in absentia. The time limit does not apply, however, if reopening is

sought to apply for asylum and 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 proceeding." 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

3 § 1003.23(b)(4)(i). An alien seeking reopening "must also establish prima facie eligibility

for [the relief sought], i.e., a realistic chance that he will be able to establish eligibility."

Poradisova v. Gonzales,

(2d Cir. 2005) (internal quotation marks omitted).

Here, the BIA assumed that Singh had demonstrated that reopening was

"warranted" -- that is, that his prima facie eligibility had been made out -- but then

denied his motion to reopen as a matter of discretion based on Singh's history of

evading immigration laws. Certified Administrative R. at 4-5. It is not clear to us

whether, once the BIA assumed that Singh had met the requirements for withholding of

removal, it had the discretion to deny relief. The BIA did not discuss the basis for its

conclusion that it had discretion to deny relief, but relied on two cases: INS v. Doherty,

(1992), and INS v. Abudu,

(1988). 2

In Doherty, the Court held that "[t]he granting of a motion to reopen is . . .

discretionary, and the Attorney General has broad discretion to grant or deny such

motions."

(citation and internal quotation marks omitted). On the other

hand, there is language in Abudu to the effect that where an alien shows he is entitled to

withholding of removal, the agency does not have discretion to deny reopening:

[I]n cases in which the ultimate grant of relief is discretionary (asylum, suspension of deportation, and adjustment of status, but not withholding of deportation), the BIA may leap ahead, as it were, over the two threshold concerns (prima facie case and new evidence/reasonable

2 The BIA also cited

(b)(1)(iv), but that regulation does not address the issue of discretion.

4 explanation), and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief.

(emphasis added); see also Aviles-Torres v. INS,

(9th

Cir. 1986) ("The Board has no discretion [to deny reopening] if the alien proves his

[withholding] claim."); Mariuta v. Gonzales,

(2d Cir. 2005)

("Abudu stands for the proposition that where the underlying relief sought is itself

discretionary in nature, the BIA may deny a motion to reopen if it determines that it

would ultimately exercise discretion to deny that relief."). We note that asylum relief is

discretionary in nature while withholding of removal, like CAT relief, is not.

The BIA did not cite

(a), which provides, in part:

The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

(emphasis added). The regulation was promulgated by the Attorney General in 1996,

well after Abudu and Doherty were decided. See

, 18,904 (Apr. 29,

1996). Regulation 1003.2(a) thus makes no mention of the distinction that Abudu seems

to have made between discretionary and non-discretionary grants of relief. Because the

BIA did not cite or discuss

(a), it is not clear the extent to which the BIA

relied on the regulation, if at all.

5 On appeal, the parties have provided little assistance. Singh argues, in

conclusory fashion, that the BIA misapplied the standard as set forth by the Supreme

Court in Doherty and that "once an alien establishes a prima facie case for withholding

of deportation and brings new evidence, the Attorney General is without discretion to

deny a motion to reopen." Pet'r's Br. at 18-19; see also

. But he does not explain

the statement, and cites Abudu only in passing and not to support this proposition.

While the government does briefly mention Abudu and cites

(a) in

passing, see Resp. Br. at 9, 11-12, it does not address the issue of whether, under Abudu

and after the promulgation of

(a), the agency had discretion to deny the

motion to reopen once the BIA assumed Singh had met the requirements for

withholding of removal.

Accordingly, we remand the case to the agency to consider the issue of

whether, if it assumes that Singh has "demonstrated that reopening is warranted,"

Certified Administrative R. at 3, it has the discretion to deny the application for relief. In

answering this question, the agency shall consider the interplay among Doherty, Abudu

(and in particular the language quoted above), and

(a). See Poradisova,

("[W]e require a certain minimum level of analysis from . . . BIA opinions

. . . if judicial review is to be meaningful."). Alternatively, of course, the agency may

wish to decide whether Singh has demonstrated that reopening is warranted, that is,

whether Singh has established prima facie eligibility for the relief sought, as the answer

6 to that question could obviate the need to decide the prior question. If the agency

decides that Singh has shown thar reopening is warranted, then the issue of whether it

has discretion to deny the application will be squarely presented.

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED, the petition for review is GRANTED, the BIA's decision is VACATED, and

the case is REMANDED to the BIA for further proceedings. All pending motions and

applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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