NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 10-2217 ____________

GURDEV SINGH, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES __________________________________

On a Petition For Review of an Order of the Board of Immigration Appeals (Agency No. A076-101-269) Immigration Judge: Henry S. Dogin __________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 23, 2011

Before: AMBRO, GREENAWAY, JR. and GREENBERG, Circuit Judges

(Opinion filed April 4, 2011) ____________

OPINION ____________

PER CURIAM

Gurdev Singh (“Singh”) petitions for review of the Board of Immigration

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for

review.

I. Background Singh, a citizen of India from Punjab, entered the United States without inspection

in December, 1997. He applied for asylum and withholding of removal, claiming that he

had been persecuted in India because of his activities on behalf of Akali Dal Mann, a

group committed to creating an independent Sikh state. His application was referred to

an Immigration Judge. On February 16, 1999, the former Immigration and Naturalization

Service served him with a Notice to Appear, charging that he was removable as an alien

not admitted or paroled, see Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i),

(a)(6)(A)(i).

On March 9, 1999, Singh appeared before an Immigration Judge without counsel

and requested a postponement. The IJ agreed to postpone the hearing until April 20,

1999. The IJ told Singh that “[i]f you’re not here, a hearing could be held in your

absence, you can be removed from the United States. Do you understand?” N.T., 3/9/99,

at 1. Singh replied “Yes, sir.” See

. Singh was given written notice of his new

hearing, which contained information concerning the consequences for failing to appear.

A.R. 98-99. Singh appeared with counsel on April 20, 1999, and waived a Punjabi

interpreter. He admitted the factual allegations and conceded removability. The IJ then

scheduled a merits hearing for September 9, 1999 in Singh’s presence and asked his

counsel to remind Singh of the consequences of failing to appear. Counsel replied that he

would. N.T., 4/20/99, at 5. Again, Singh, through counsel, was given written notice of

his new hearing, which contained information concerning the consequences for failing to

appear. A.R. 96-97. On September 9, 1999, the merits hearing convened with Singh’s

counsel in attendance, but Singh failed to appear. The IJ ordered Singh removed to India

in absentia.

2 On December 23, 1999, Singh, through the same counsel, filed a motion to reopen

with the IJ, alleging that exceptional circumstances prevented Singh from attending his

hearing. Singh asserted in a supporting affidavit that he missed his hearing due to illness;

he was suffering from headaches, dizziness, and palpitations. He did not contest receipt

of notice. The Government opposed reopening the proceedings, noting that Singh had

not provided any documentation regarding his illness. On February 11, 2000, the IJ

denied the motion to reopen. Noting that a motion to reopen an in absentia order filed

within 180 days may be granted where the alien shows “circumstances (such as serious

illness of the alien or serious illness or death of the spouse, child or parent of the alien,

but not including less compelling circumstances) beyond the control of the alien,” INA §

240(e)(1), 8 U.S.C. § 1229a(e)(1),1 the IJ determined that there was insufficient evidence

that Singh’s failure to appear was due to serious illness. He based that conclusion on the

lack of documentation, and Singh’s delay of three months in seeking reopening, which

tended to undermine the genuineness of his claim of illness.

Singh appealed, through the same counsel, to the Board of Immigration Appeals,

but did not file a brief in support of that appeal. On November 7, 2002, the Board

affirmed the IJ, noting that Singh’s notice of appeal addressed only asylum-related issues

and did not challenge the IJ’s conclusion regarding the absence of exceptional

circumstances for reopening the in absentia order. Singh did not file a petition for review

of the Board’s decision.

Almost 7 years later, Singh, through new counsel, filed a second motion to reopen,

this time with the Board. Singh asked the Board to use its sua sponte authority to reopen

1 The statute was amended effective January 5, 2006 to add “battery or extreme cruelty to the alien or any child or parent of the alien.” Id. 3 proceedings,

(a). For the first time, Singh alleged that the notice he

received on April 20, 1999 of his upcoming merits hearing violated his right to due

process because the IJ did not personally advise him (through a Punjabi interpreter) of the

consequences of failing to appear. Additionally, Singh alleged that the Board should

have previously advised him of the time and number limitations applicable to motions to

reopen, and he also requested that the Board exercise its discretion to reopen his

proceeding so that he could apply for adjustment of status based on his 1999 marriage to

Manjit Kaur, who had become a United States citizen on July 24, 2003.

On April 16, 2010, the Board denied the motion to reopen as time- and number-

barred.2 The Board rejected Singh’s due process argument because both the Notice to

Appear and the first hearing notice issued, dated March 9, 1999, were personally served

on Singh and set forth in writing the consequences of failing to appear. The Board held

that there is no law requiring that warnings of the consequences of failing to appear be

given in the alien’s native language. In addition, the Board continued, the law does not

require that aliens be advised concerning the time and number limitations on motions to

reopen. Last, the Board declined to exercise its sua sponte authority to reopen

proceedings on account of Singh’s marriage to a United States citizen. The Board noted

that aliens like Singh often become eligible for adjustment of status after a final order of

removal has been entered, and no exceptional circumstances warranted reopening.

2 The Board mistakenly noted that the Government had not opposed the second motion to reopen. In fact, the record establishes that the motion was opposed. A.R. 5-8. 4 Singh then petitioned our Court for review, arguing that the Board erred in

rejecting his arguments regarding the inadequacy of the IJ’s warning and the Board’s

failure to give notice of the time and number limitations applicable to motions to reopen.3

II. Jurisdiction and Standard of Review

We have jurisdiction under

(a)(1). We generally review the denial

of a motion to reopen for abuse of discretion, but “questions of law, such as . . . the

underlying claim of denial of due process, are . . . reviewed de novo.” Fadiga v. Att’y

Gen.,

(3d Cir. 2007). The agency’s factual determinations are

upheld if they are supported by reasonable, substantial, and probative evidence on the

record considered as a whole. Immigration & Naturalization Serv. v. Elias-Zacarias,

(1992).

III. Analysis

An alien in removal proceedings shall be ordered removed in absentia if he fails to

appear at a scheduled hearing after having been properly provided written notice of the

time and place of that hearing, and the agency establishes by clear, unequivocal, and

convincing evidence that the notice was provided and that the alien is removable as

charged. 8 U.S.C. § 1229a(b)(5)(A);

(c). However, an order of

removal entered in absentia may be rescinded upon a motion to reopen filed within 180

days of the date of the order of removal where the alien demonstrates that his failure to

appear was because of exceptional circumstances.4 Additionally, an in absentia order

3 Singh does not appeal the BIA’s decision not to exercise its sua sponte authority to reopen proceedings and, in any event, we would lack jurisdiction to review that decision, see Calle-Vujiles v. Ashcroft,

(3d Cir. 2003). 4 Singh’s first motion to reopen, which asserted exceptional circumstances, was timely filed. However, he did not timely petition for review of the Board’s November 7, 2002 5 may be rescinded upon a motion to reopen filed at any time where the alien demonstrates

that he did not receive proper notice of his hearing, or that he was in federal or state

custody and failed to appear through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C)(i)-

(ii);

(b)(4)(ii). Aliens ordered removed in absentia, like other aliens,

may file only one motion to reopen. Luntungan v. Att’y Gen. of the U.S.,

,

556 (3d Cir. 2006) (per curiam); 8 U.S.C. § 1229a(c)(7)(A),(B) (“[a]n alien may file one

motion to reopen proceedings”).

Because Singh’s second motion to reopen—which was filed outside the 180-day

deadline—alleged that Singh did not receive effective notice of his hearing, it was at least

arguably timely. However, the BIA correctly held that the Singh’s motion was number-

barred, Luntungan, 449 F.3d at 556, and we cannot accept Singh’s argument that due

process required the BIA to “equitably toll” the numerical limitations on filing motions to

reopen. Even if numerical limitations may be tolled in the first place, “[e]quitable tolling

is an extraordinary remedy which should be extended only sparingly.” Mahmoud, 427

F.3d at 253 (quoting Hedges v. United States,

(3d Cir. 2005)). Singh

does not allege ineffective assistance of counsel with regard to the first motion to

reopen,5 and his mistake about the law concerning the time and number limits for

motions to reopen is not a basis for equitable tolling, see Jones v. Morton,

(3d Cir. 1999). Moreover, Singh’s first motion to reopen gave him a fair chance to

be heard. We held in Luntungan that “[e]quity requires nothing more.” Id. at 558.

decision,

(b)(1), so we now lack jurisdiction to review the determination that his evidence of illness was insufficient to establish exceptional circumstances. 5 We held in Mahmoud that attorney conduct can provide a basis for equitable tolling, but failure to exercise due diligence in asserting ineffective assistance of counsel undermines any claim for equitable tolling of the motion to reopen deadline,

. See also Borges v. Gonzales,

(3d Cir. 2005). 6 In any event, we must affirm the BIA because Singh’s rights were not violated by

the IJ’s purported failure to notify Singh personally, through an interpreter, of the

consequences of failing to appear for his September hearing. First, during the March

hearing, the IJ personally warned Singh about the consequences of failing to appear at the

April 20, 1999 hearing, and Singh indicated that he understood. N.T., 3/9/99, at 1. Then,

at the April 20, 1999 hearing, Singh waived a Punjabi interpreter. N.T. 4/20/99, at 3.

Following that waiver, while setting a new hearing date, the IJ asked Singh’s counsel to

“advise [Singh] of the consequences of his failure to appear and the various forms of

relief he would be ineligible for if he were not here,” and counsel agreed to do so.

Additionally, the record indicates that, during the April hearing, Singh’s counsel was

given written notice of the September 9 hearing date.6 Even though this procedure, taken

as a whole, was perhaps not ideal, we conclude that it did not rise to the level of a due

process violation in light of Singh’s March 9 statement that he understood the

consequences of failing to appear and Singh’s April 20 waiver of a Punjabi interpreter.

Moreover, we note that Singh’s failure to raise the lack of adequate notice in his first

motion to reopen seriously undermines his current objection.

IV. Conclusion

For the foregoing reasons, we will deny the petition for review. Petitioner’s

motion to supplement the Administrative Record with the transcripts from the March 9,

1999, April 20, 1999, and September 9, 1999 hearings is granted insofar as the transcripts

were prepared using the agency’s official recordings.

6 This procedure is explicitly contemplated by the regulations applicable to in absentia hearings.

(a). 7