09-3021-ag
    Singh v. Holder
                                                                                  BIA
                                                                          A090 234 465

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 7th day of April, two thousand eleven.

    PRESENT:
             ROSEMARY S. POOLER,
             ROBERT D. SACK,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    AVTAR SINGH,
             Petitioner,

                      v.                                   09-3021-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Avtar Singh, pro se, Valley Stream,
                                  New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Douglas E. Ginsburg,
                                  Assistant Director; Paul Fiorino,
                                  Senior Litigation Counsel; Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Petitioner Avtar Singh, a native and citizen of India,

seeks review of the BIA’s June 22, 2009, decision denying

his motion to reopen.     In re Avtar Singh, No. 090 234 465

(B.I.A. June 22, 2008).     We assume the parties’ familiarity

with the underlying facts and procedural history of this

case.

    As an initial matter, we generally lack jurisdiction to

review a final order of removal resulting, as in this case,

from a conviction for a crime of moral turpitude.       8 U.S.C.

§§ 1252(a)(2)(C), 1182(a)(2)(A)(i)(I).       Notwithstanding this

provision, we retain jurisdiction to review “constitutional

claims” and “questions of law.”       8 U.S.C. § 1252(a)(2)(D).

Here, Singh’s claim that he was prejudiced by ineffective

assistance of counsel raises a constitutional issue over

which we retain jurisdiction.       8 U.S.C. § 1252(a)(2)(D);

Iavorski v. INS, 

, 134-35 (2nd Cir. 2000). We

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

discretion.   Ali v. Gonzales, 

, 517 (2d Cir.

2006).


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    It is undisputed that Singh’s January 2009 motion to

reopen was untimely, because it was filed more than one year

after the BIA’s December 2007 decision.    8 C.F.R.

§ 1003.2(c)(2).    However, under the doctrine of equitable

tolling, an alien who demonstrates ineffective assistance of

counsel may be excused from compliance with the applicable

time bar.     See Rashid v. Mukasey, 

, 130-131 (2d

Cir. 2008).    Singh argues that the ineffective assistance of

his former counsel should have excused the untimely filing

of the motion.

    In order to warrant equitable tolling, an alien must

demonstrate, inter alia, that he was prejudiced by counsel’s

ineffective performance.     Rabiu v. INS, 

, 882 (2d

Cir. 1994).    To show prejudice, the alien “must allege facts

sufficient to show 1) that competent counsel would have

acted otherwise, and 2) that he was prejudiced by his

counsel’s performance.”     

(internal quotation

marks omitted).    Singh argues that he was prejudiced by

counsel’s failure to adequately prepare him for his hearing

“by advising him about the type of questions that could be

asked” and asserts that if counsel had so prepared him, he

“would have refreshed his memory before going on the stand


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and would have answered the . . . questions more coherently

and thus could have avoided the adverse credibility

finding.”     This argument is unavailing, as Singh was asked

about facts with respect to his own life, including the

number of times his driver’s license was suspended, facts

about his criminal history, and information about his

income.     The inconsistencies internal to Singh’s testimony,

as well as between his testimony and other evidence, are too

significant to be attributable to lack of preparation by

Singh’s counsel.     Zheng Zhong Chen v. Gonzales, 

, 270 (2d Cir. 2006) (“While petitioner[] may assert a

claim of ineffective assistance of counsel . . . due process

does not insulate a petitioner from the consequence of his

own dishonest acts.”).     Because Singh failed to demonstrate

that he was prejudiced by ineffective assistance of counsel,

the BIA did not abuse its discretion in denying his motion

to reopen as untimely.

    For the foregoing reasons, these petitions for review

are DENIED.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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