Filed: Nov. 15, 2019
Latest Update: Mar. 03, 2020
Summary: 17-3214 Singh v. Barr BIA A205 931 845 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 “SUMMAR
Summary: 17-3214 Singh v. Barr BIA A205 931 845 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..
More
17-3214
Singh v. Barr
BIA
A205 931 845
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 15th day of November, two thousand
5 nineteen.
6
7 PRESENT:
8 ROBERT A. KATZMANN,
9 Chief Judge,
10 REENA RAGGI,
11 SUSAN L. CARNEY,
12 Circuit Judges.
13 _____________________________________
14
15 GURWINDER SINGH,
16 Petitioner,
17
18 v. 17-3214
19 NAC
20
21 WILLIAM P. BARR, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Amy Nussbaum Gell, New York, NY.
27
28 FOR RESPONDENT: Chad A. Readler, Acting Assistant
29 Attorney General; Holly M. Smith,
1 Senior Litigation Counsel; Sarah
2 K. Pergolizzi, Trial Attorney,
3 Office of Immigration Litigation,
4 United States Department of
5 Justice, Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DISMISSED in part, and DENIED in part.
11 Petitioner Gurwinder Singh, a native and citizen of
12 India, seeks review of a BIA decision denying his motion to
13 reopen. See In re Gurwinder Singh, No. A205 931 845 (B.I.A.
14 Sept. 15, 2017). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 We review the BIA’s denial of a motion to reconsider or
17 reopen for abuse of discretion, and we review the BIA’s
18 determination regarding country conditions for substantial
19 evidence. See 8 U.S.C. § 1252(b)(4)(B) (“[A]dministrative
20 findings of fact are conclusive unless any reasonable
21 adjudicator would be compelled to conclude to the
22 contrary[.]”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-
23 69 (2d Cir. 2008); Jin Ming Liu v. Gonzales,
439 F.3d 109, 111
2
1 (2d Cir. 2006). We do not reach the agency’s adverse
2 credibility finding, however, because Singh did not timely
3 appeal the BIA’s affirmance of the IJ’s adverse credibility
4 determination. See Paul v. Gonzales, 444 F.3d 148, 153 (2d
5 Cir. 2006) (“[W]here an asylum applicant does not file a
6 timely appeal disputing the BIA’s affirmance of the IJ’s
7 credibility ruling, a motion to reopen does not provide a
8 collateral route by which the alien may challenge the validity
9 of the original credibility determination.”). Accordingly,
10 our review is limited to the BIA’s denial of Singh’s motion
11 to reconsider and reopen, see
id., and we identify no abuse
12 of discretion in the BIA’s denial of that motion.
13 Motion to Reconsider
14 The BIA did not abuse its discretion by denying
15 reconsideration because Singh’s June 2017 motion was filed
16 more than 30 days after the BIA’s April 2017 decision. See
17 8 U.S.C. § 1229a(c)(6)(B) (providing that motion to
18 reconsider “must be filed within 30 days of the date of entry
19 of a final administrative order of removal”); see also
20 8 C.F.R. § 1003.2(b)(2).
3
1 Motion to Reopen
2 Singh’s motion to reopen, however, was timely filed. See
3 8 U.S.C. § 1229a(c)(7)(C)(i) (providing that “motion to
4 reopen shall be filed within 90 days of the date of entry of
5 a final administrative order of removal”); 8 C.F.R.
6 § 1003.2(c)(2) (same). “[A] motion to reopen shall state
7 the new facts that will be proven at a hearing to be held if
8 the motion is granted, and shall be supported by affidavits
9 or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B);
10 8 C.F.R. § 1003.2(c)(1). “A motion to reopen proceedings
11 shall not be granted unless . . . th[e] evidence sought to be
12 offered is material and was not available and could not have
13 been discovered or presented at the former hearing.”
14 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94,
15 104 (1988) (observing that BIA may deny motion to reopen if
16 movant has not introduced previously unavailable, material
17 evidence).
18 The BIA did not err in denying Singh’s motion to reopen
19 because the evidence he offered in support thereof was either
20 not new, or not material in that it merely reinforced country
4
1 conditions evidence already in the record. Two of the twelve
2 documents that Singh submitted with his motion to reopen pre-
3 date his August 2016 hearing before the IJ, and the relevant
4 evidence that post-dates his hearing details events that
5 occurred before August 2016. Such evidence, therefore, was
6 not previously unavailable or new because it describes
7 conditions and events in India before Singh’s hearing. See
8 8 C.F.R. § 1003.2(c)(1).
9 Nor was the evidence material because it did not
10 demonstrate conditions for Sikhs in India different from
11 those reflected in the evidence produced at Singh’s hearing.
12 Singh’s original evidence demonstrated that religious
13 tensions were an ongoing concern in India, and that Hindu
14 nationalists had long engaged in the persecution of religious
15 minorities, including Sikhs. The evidence that Singh
16 submitted with his motion to reopen confirmed ongoing
17 religious tension and violence and that conditions had been
18 deteriorating since before Singh’s hearing. See, e.g.,
19 Certified Administrative Record (“CAR”) at 52-53 (2017 U.S.
20 Commission on International Religious Freedom Report). In
5
1 short, the evidence was not materially different.
2 Singh argues that conditions for Sikhs have worsened
3 since the election of Prime Minister Narendra Modi, but that
4 election occurred in 2014, two years before Singh’s hearing.
5 While an article reports that Hindu nationalists and Prime
6 Minister Modi’s party dominated the 2017 regional elections,
7 and that there are tensions between Muslims and Hindus, it
8 does not otherwise detail any increased repression of Sikhs.
9 See CAR at 75-76. On this record, the agency was not
10 compelled to conclude that Singh’s evidence was new or
11 material to his fear of harm as a Sikh so as to warrant
12 reopening. See INS v. Abudu, 485 U.S. at 104; Jian Hui Shao
13 v.
Mukasey, 546 F.3d at 168-69.
14 For the foregoing reasons, the petition for review is
15 DISMISSED in part as to Singh’s challenges to the underlying
16 adverse credibility determination and DENIED in remaining
17 part.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk of Court
20
21
6
