12-3296 Basra v. Bondi BIA A078 725 336

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 15th day of October, two thousand twenty-five.

PRESENT: DENNIS JACOBS, STEVEN J. MENASHI, EUNICE C. LEE, Circuit Judges. _____________________________________

HARINDER SINGH BASRA, Petitioner,

v. 12-3296 NAC PAMELA BONDI, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Dustin P. Smith, Hughes Hubbard & Reed LLP, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Nancy E. Friedman, Senior Litigation Counsel; Andrew Oliveira, 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 Harinder Singh Basra, a native and citizen of India, seeks review

of a July 23, 2012, decision of the BIA denying his motion to reopen his removal

proceedings. In re Harinder Singh Basra, No. A078 725 336 (B.I.A. July 23, 2012). We

assume the parties’ familiarity with the underlying facts and procedural history.

As an initial matter, we deny Basra’s request to file a supplemental brief

because the relevant law has not changed since he filed his opening brief.

Furthermore, we must “decide the petition only on the administrative record on

which the order of removal is based,”

(b)(4)(A), and we do not

exercise any power to remand if “the basis for the remand is an instruction to

consider documentary evidence that was not in the record before the BIA” and

“the agency regulations set forth procedures to reopen a case before the BIA for 2 the taking of additional evidence,” Xiao Xing Ni v. Gonzales,

(2d

Cir. 2007).

We review the BIA’s denial of a motion to reopen for abuse of discretion and

we review factual findings for substantial evidence. See Jian Hui Shao v. Mukasey,

(2d Cir. 2008). It is undisputed that Basra’s 2012 motion to

reopen was untimely and number-barred because it was his third motion to

reopen filed more than seven years after the agency’s 2004 final order of removal.

See 8 U.S.C. § 1229a(c)(7)(A), (C)(i) (providing that one motion to reopen may be

filed within 90 days of a final order of removal);

(c)(2) (same). The

time and number limits do not apply if the motion is filed to apply for asylum

“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). The

limits also may be excused based on ineffective assistance of counsel and “due

diligence in pursuing the case.” Cekic v. INS,

(2d Cir. 2006)

(quoting Iavorski v. INS,

(2d Cir. 2000)). The BIA did not err in

finding that neither changed conditions nor ineffective assistance excused the 3 limits here.

A. Changed Conditions

“[T]o prevail on a motion to reopen alleging changed country conditions

where the persecution claim was previously denied based on an adverse

credibility finding in the underlying proceedings, the [movant] must either

overcome the prior determination or show that the new claim is independent of

the evidence that was found to be not credible.” Matter of F-S-N-,

,

3 (B.I.A. 2020); see also Kaur v. BIA,

(2d Cir. 2005) (identifying no

error in the BIA’s determination that “evidence submitted by petitioner in support

of her motion was not ‘material’ because it did not rebut the adverse credibility

finding that provided the basis for the IJ’s denial of petitioner’s underlying asylum

application”).

In his underlying proceedings, Basra was found not credible as to his claim

that police detained and beat him and would do so again in the future. He made

inconsistent statements regarding how many times he was arrested and what

happened while he was detained, and there were striking similarities among his

supporting affidavits. Basra’s evidence in support of reopening—his own

affidavit, his nephew’s affidavit, complaints against his former attorneys, and 4 general country conditions evidence—did not rebut these findings but restated his

original claim, discussed an alleged incident in 2011 when police purportedly

detained and threatened his nephew in an effort to locate Basra, described his

interactions with his attorneys in the United States, and discussed general

conditions in India. The BIA also did not err in declining to credit his personalized

evidence in light of the underlying adverse credibility determination. See Qin Wen

Zheng v. Gonzales,

(2d Cir. 2007) (holding that the agency may

decline to credit evidence when there has been a prior adverse credibility

determination); see also Y.C. v. Holder,

(2d Cir. 2013) (“We defer

to the agency’s determination of the weight afforded to an alien’s documentary

evidence.”). Because his evidence did not address his inconsistent statements or

the similarities between his supporting affidavits, it did not rebut the underlying

adverse credibility determination. Accordingly, the BIA did not err in concluding

that any purported change was not material and could not excuse the time and

number limitations on Basra’s motion to reopen. See Kaur,

; Matter

of F-S-N-, 28 I. & N. Dec. at 3.

Moreover, contrary to Basra’s contention, the country conditions evidence

does not demonstrate worsened conditions for politically active Sikhs between his 5 2003 hearing and 2012 motion. Rather, the evidence shows continuing arrests of

Sikh separatists and increased custodial deaths of all prisoners in the Punjab. See

Tanusantoso v. Barr,

(2d Cir. 2020) (“When reviewing whether . . .

evidence established changed country conditions, the BIA must ‘compare the

evidence of country conditions submitted with the motion to those that existed at

the time of the merits hearing below.’”) (quoting Matter of S-Y-G-,

(B.I.A. 2007)); see also Matter of S-Y-G-,

(“Change that

is incremental or incidental does not meet the regulatory requirements for late

motions of this type.”). Thus, Basra failed to submit evidence of changed

conditions to excuse the time and number limits. See 8 U.S.C. § 1229a(c)(7)(A), (C).

B. Ineffective Assistance

Ineffective assistance may provide a basis for equitable tolling of the filing

period. See Cekic,

. To prevail on a claim of ineffective assistance of

counsel, a movant must show that “competent counsel would have acted

otherwise” and “that he was prejudiced by his counsel’s performance.” Rabiu v.

INS,

, 882–83 (2d Cir. 1994) (quoting Esposito v. INS,

(2d Cir. 1993)). Even if a movant establishes that prior counsel was ineffective,

equitable tolling requires a demonstration of “due diligence” in pursuing the 6 ineffective assistance 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.” Rashid v. Mukasey,

(2d

Cir. 2008); see also Cekic,

(requiring a demonstration of due diligence

independent of the ineffective assistance of counsel).

The BIA did not err in concluding that Basra failed to demonstrate due

diligence. Basra asserted that his former attorneys were ineffective for failing to

file a brief in his appeal to the BIA, to inform him of the BIA’s decision so he could

petition for review, or to raise ineffective assistance claims in his first two motions

to reopen. 1 However, the BIA dismissed Basra’s appeal in 2004, and he admits that

he discovered that his appeal was dismissed when he hired a new attorney in 2007.

Yet Basra did not raise his claim that counsel was ineffective for failing to inform

him of that decision until he filed his third motion to reopen more than three years

later in 2011. See Jian Hua Wang v. BIA,

(2d Cir. 2007) (explaining

that the “petitioner bears the burden of proving that he has exercised due diligence

1We note that the BIA did not dismiss Basra’s appeal for failure to file a brief and that his attorney timely petitioned for review of that decision, although that petition was later withdrawn. 7 in the period between discovering the ineffectiveness of his representation and

filing the motion” and finding no due diligence where there was five-month delay

in filing the motion).

Insofar as Basra argues that his former counsel was ineffective for failing to

file a brief on appeal to the BIA and that his appeal was dismissed for that reason,

he does not assert that he asked his counsel in 2007 why the BIA dismissed his

appeal or that he otherwise attempted to discover the basis for the dismissal

despite knowing then that his former attorney had deceived him by informing him

that his appeal was still pending and failing to inform him of the BIA’s decision.

See

Basra’s contention that his former counsel should have raised these claims

in his first and second motions to reopen—which were filed in 2009 and 2010—

suffers from the same lack of diligence given the BIA’s determination that he

should have discovered his claims related to the BIA’s 2004 decision earlier and

his admission that he knew of that dismissal as early as 2007. See Cekic,

(“From the point at which the ineffective assistance of counsel should have

been . . . discovered, ‘an alien must demonstrate that the alien has exercised due

diligence in pursuing the case during the period the alien seeks to toll.”) (alteration

omitted) (quoting Iavorski,

); see also Jian Hua Wang,

. 8 Basra’s failure to act diligently was dispositive of his ineffective assistance of

counsel claim and thus that claim did not excuse the time and number limitations

on his motion. See Cekic,

.

Because Basra did not rebut the underlying adverse credibility

determination, establish a material change in conditions, or show due diligence in

raising his ineffective assistance of counsel claims, the BIA did not abuse its

discretion in denying his motion to reopen as untimely and number-barred. See

8 U.S.C. § 1229a(c)(7)(A), (C).

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

9