Filed: Aug. 05, 2020
Latest Update: Aug. 05, 2020
Summary: 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 NOTATI
Summary: 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 NOTATIO..
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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., 448 F.3d
23 524, 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, 411 F.3d 54, 58 (2d Cir.
2 2005), and we review any finding regarding changed country
3 conditions for substantial evidence, see Jian Hui Shao v.
4 Mukasey,
546 F.3d 138, 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,
265 F.3d 83, 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.” 8 C.F.R. § 1003.23(b)(4)(iii)(B); Twum,
411 F.3d
21 at 58; see also In re N-B-, 22 I. & N. Dec. 590, 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 19 I. & N. Dec. 641, 642 (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); 8 C.F.R. § 1003.23(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 8 C.F.R. § 1003.23(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-, 24 I. & N. Dec. 247, 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. Id. at 257.
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
