Singh v. Attorney General of the United States
Opinion of the Court
OPINION
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)®, 8 U.S.C. § 1182(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., 8/9/99, at 1. Singh replied ‘Yes, sir.” See id. at 2. 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.
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
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 ab-sentia 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 proceedings, 8 C.F.R. § 1003.2(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.
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.
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); 8 C.F.R. § 1003.26(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.
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, “[ejquitable tolling is an extraordinary remedy which should be extended only sparingly.” Mahmood v. Gonzales, 427 F.3d 248, 253 (3d Cir. 2005) (quoting Hedges v. United States, 404 F.3d 744, 751 (3d Cir. 2005)). Singh does not allege ineffective assistance of counsel with regard to the first motion to reopen,
In any event, we must affirm the BIA because Singh’s rights were not violated by the IJ’s purported failure to notify
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.
. 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.
. 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.
.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, 320 F.3d 472, 475 (3d Cir. 2003).
. 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 decision, 8 U.S.C. § 1252(b)(1), so we now lack jurisdiction to review the determination that his evidence of illness was insufficient to establish exceptional circumstances.
. 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, id. at 252-53. See also Borges v. Gonzales, 402 F.3d 398, 407 (3d Cir. 2005).
. This procedure is explicitly contemplated by the regulations applicable to in absentia hearings. 8 C.F.R. § 1003.26(a).
Reference
- Full Case Name
- Gurdev SINGH v. ATTORNEY GENERAL OF the UNITED STATES
- Status
- Published