05-6455-ag

Singh v. Keisler

BIA

A 79 299 267

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

" ( S U M M A R Y ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

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O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 23rd day of October, two thousand seven. PRESENT: H O N . ROBERT D. SACK, H O N . REENA RAGGI, H O N . PETER W. HALL, C i r c u i t Judges. B A L W I N D E R SINGH, Petitioner, v. 05-6455-ag NAC P E T E R D. KEISLER, A C T I N G U.S. ATTORNEY GENERAL, 1 Respondent. P u r s u a n t to Federal Rule of Appellate Procedure 43(c)(2), Acting A t t o r n e y General Peter D. Keisler is automatically substituted for former A t t o r n e y General Alberto R. Gonzales as a respondent in this case. F O R PETITIONER: B a l w i n d e r Singh, Pro Se, Bellerose, N e w York.

F O R RESPONDENT: T r o y A. Eid, United States Attorney, D i s t r i c t of Colorado, Timothy B.

J a f e k , Assistant United States A t t o r n e y , Denver, Colorado.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

B a l w i n d e r Singh, a native and citizen of India, seeks r e v i e w of a November 28, 2005, order of the BIA denying his m o t i o n to reopen his removal proceedings. In re Balwinder S i n g h , No. A79 299 267 (B.I.A. Nov. 28, 2005). We assume t h e parties' familiarity with the underlying facts and p r o c e d u r a l history of the case.

A s a threshold matter, we are precluded from c o n s i d e r i n g the merits of Singh's underlying removal p r o c e e d i n g s , and our review is confined only to the BIA's d e n i a l of his motion to reopen. See Kaur v. B.I.A., 413 F . 3 d 232, 233 (2d Cir. 2005) (per curiam). However, because S i n g h appears pro se before the Court, we construe his brief b r o a d l y to raise the strongest arguments that it suggests.

S e e Weixel v. Board of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002). We therefore find Singh's assertions that he "can n o t go back to India as the Congress Party is in power" and t h a t the Congress Party was the party responsible for the p e r s e c u t i o n of Akali Dal Mann party members and the deaths o f "thousands of innocent Sikhs" sufficient to preserve his c h a l l e n g e to the BIA's denial of his motion to reopen.

W h e n the BIA denies a motion to reopen, we review the B I A ' s decision for an abuse of discretion. See Twum v. INS, 4 1 1 F.3d 54, 58 (2d Cir. 2005). An abuse of discretion may b e found where the BIA's decision "provides no rational e x p l a n a t i o n , inexplicably departs from established policies, i s devoid of any reasoning, or contains only summary or c o n c l u s o r y statements; that is to say, where the Board has a c t e d in an arbitrary or capricious manner." Ke Zhen Zhao v . U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) ( c i t a t i o n s omitted).

G o v e r n i n g regulations require that a motion to reopen b e supported by affidavits or other evidence. See 8 C.F.R. § 1003.2(c)(1). Further, a motion to reopen "must be filed n o later than 90 days after the date on which the final a d m i n i s t r a t i v e decision was rendered in the proceeding s o u g h t to be reopened." 8 C.F.R. § 1003.2(c)(2). It is u n d i s p u t e d that Singh's motion was untimely. However, s e c t i o n 1003.2(c)(3)(ii) affords an exception to the filing d e a d l i n e for those seeking to reopen their cases based on " c h a n g e d circumstances arising in the country of nationality o r in the country to which deportation has been ordered, if s u c h evidence is material and was not available and could n o t have been discovered or presented at the previous hearing." W e conclude that the BIA did not abuse its discretion i n holding that this exception did not apply to Singh's motion. Singh asserted that country conditions in India had c h a n g e d because the Congress Party had returned to power, t h a t the Congress Party had persecuted Sikhs, and that if r e t u r n e d , he would be "arrested and tortured." Despite t h e s e assertions, the BIA properly found that Singh failed t o establish "`changed circumstances' in India that affect h i s eligibility for asylum." Indeed, Singh did not support h i s motion with any evidence of changed conditions in India.

S e e 8 C.F.R. § 1003.2(c)(3)(ii); see also Kaur, 413 F.3d at 234. Accordingly, Singh failed to demonstrate how the C o n g r e s s Party's return to power would adversely affect him i f he returned to India. See Kaur, 413 F.3d at 234. In l i g h t of that failure, the BIA did not abuse its discretion i n denying his motion to reopen.

F o r the foregoing reasons, the petition for review is D E N I E D . The pending motion for a stay of removal is D I S M I S S E D as moot.

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By: