17-4119 Bajwa v. Barr BIA A073 674 641
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of July, two thousand nineteen.
PRESENT: JON O. NEWMAN, DEBRA ANN LIVINGSTON, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
JASPAL BAJWA, Petitioner,
v. 17-4119 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, P.C., Jackson Heights, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Melissa Neiman- Kelting, Assistant Director; Melissa K. Lott, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Jaspal Bajwa, a native and citizen of India,
seeks review of a December 1, 2017, decision of the BIA,
denying his motion to reopen. In re Jaspal Bajwa, No. A073
674 641 (B.I.A. Dec. 1, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
The applicable standards of review are well established.
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
2008). In his motion to reopen, Bajwa asserted that the time
and number limitations on his motion to reopen to apply for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”) should be excused because
conditions for members of the All India Sikh Students
Federation (“AISSF”) in India had worsened and his former
counsel had been ineffective.
It is undisputed that, unless an exception to the time
and number limitations applies, Bajwa’s 2017 motion to reopen 2 was untimely and number barred because this third motion to
reopen was filed more than 19 years after his deportation
order became final in 1997, see 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2), and it was filed more than 17 years
after the June 1999 deadline for seeking reopening after CAT
relief became available, see 8 C.F.R. § 1208.18(b)(2)(i). As
discussed below, the BIA did not abuse its discretion in
denying the motion as time and number barred because no
exceptions applied.
Changed Country Conditions
The time and number limitations for filing a motion to
reopen asylum proceedings do not apply if the motion is “based
on changed country conditions arising in the country of
nationality or the country to which removal has been ordered,
if such evidence is material and was not available and would
not have been discovered or presented at the previous
proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
C.F.R. § 1003.2(c)(3)(ii). “In determining whether evidence
accompanying a motion to reopen demonstrates a material
change in country conditions that would justify reopening,
[the agency] compare[s] the evidence of country conditions 3 submitted with the motion to those that existed at the time
of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec.
247, 253 (BIA 2007). The BIA did not err in finding that
Bajwa’s evidence was insufficient to establish worsened
conditions for members of AISSF since his 1996 hearing because
the evidence discussed incidents of harm from the 1980s and
1990s but no recent harm to Sikhs or Sikh organizations, such
as AISSF. Therefore, the BIA reasonably concluded that
Bajwa’s evidence failed to demonstrate a material change in
conditions in India to excuse the untimely and number barred
filing of his motion to reopen to apply for asylum and
withholding of removal. See 8 U.S.C. § 1229a(c)(7)(A), (C).
Equitable Tolling
Nor did the BIA err in declining to excuse the time and
number limitations based on Bajwa’s ineffective assistance of
counsel claim. As an initial matter, Bajwa does not
challenge the BIA’s dispositive and reasonable finding that
his ineffective assistance claim was foreclosed because he
failed to comply with Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988), which requires the movant to (1) file an affidavit
detailing his agreement with former counsel and (2) submit 4 proof that he notified former counsel and the proper
disciplinary authority of his allegations. See Jian Yun
Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-47 (2d Cir.
2005); see also Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005) (concluding that petitioner waived
issues and claims not raised in his brief). Further, the BIA
did not err in finding that Bajwa did not exercise due
diligence in pursuing his ineffective assistance claim as
required because he failed to describe taking any action in
his deportation proceedings for more than a decade preceding
his motion to reopen. See Rashid v. Mukasey, 533 F.3d 127,
132 (2d Cir. 2008) (requiring a noncitizen to demonstrate
“due diligence” in pursuing his claim during “both the period
of time before the ineffective assistance of counsel was or
should have been discovered and the period from that point
until the motion to reopen is filed”); see also Jian Hua Wang
v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (explaining that
“petitioner bears the burden of proving that he has exercised
due diligence in the period between discovering the
ineffectiveness of his representation and filing the motion”
and citing several cases in which this Court has held that “a 5 petitioner who waits two years or longer to take steps to
reopen a proceeding has failed to demonstrate due
diligence”).
Sua Sponte Reopening Authority
Because Bajwa did not demonstrate that the time and
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17-4119 Bajwa v. Barr BIA A073 674 641
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of July, two thousand nineteen.
PRESENT: JON O. NEWMAN, DEBRA ANN LIVINGSTON, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________
JASPAL BAJWA, Petitioner,
v. 17-4119 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Anas J. Ahmed, Pannun The Firm, P.C., Jackson Heights, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Melissa Neiman- Kelting, Assistant Director; Melissa K. Lott, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Jaspal Bajwa, a native and citizen of India,
seeks review of a December 1, 2017, decision of the BIA,
denying his motion to reopen. In re Jaspal Bajwa, No. A073
674 641 (B.I.A. Dec. 1, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
The applicable standards of review are well established.
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
2008). In his motion to reopen, Bajwa asserted that the time
and number limitations on his motion to reopen to apply for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”) should be excused because
conditions for members of the All India Sikh Students
Federation (“AISSF”) in India had worsened and his former
counsel had been ineffective.
It is undisputed that, unless an exception to the time
and number limitations applies, Bajwa’s 2017 motion to reopen 2 was untimely and number barred because this third motion to
reopen was filed more than 19 years after his deportation
order became final in 1997, see 8 U.S.C. § 1229a(c)(7)(C)(i);
8 C.F.R. § 1003.2(c)(2), and it was filed more than 17 years
after the June 1999 deadline for seeking reopening after CAT
relief became available, see 8 C.F.R. § 1208.18(b)(2)(i). As
discussed below, the BIA did not abuse its discretion in
denying the motion as time and number barred because no
exceptions applied.
Changed Country Conditions
The time and number limitations for filing a motion to
reopen asylum proceedings do not apply if the motion is “based
on changed country conditions arising in the country of
nationality or the country to which removal has been ordered,
if such evidence is material and was not available and would
not have been discovered or presented at the previous
proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
C.F.R. § 1003.2(c)(3)(ii). “In determining whether evidence
accompanying a motion to reopen demonstrates a material
change in country conditions that would justify reopening,
[the agency] compare[s] the evidence of country conditions 3 submitted with the motion to those that existed at the time
of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec.
247, 253 (BIA 2007). The BIA did not err in finding that
Bajwa’s evidence was insufficient to establish worsened
conditions for members of AISSF since his 1996 hearing because
the evidence discussed incidents of harm from the 1980s and
1990s but no recent harm to Sikhs or Sikh organizations, such
as AISSF. Therefore, the BIA reasonably concluded that
Bajwa’s evidence failed to demonstrate a material change in
conditions in India to excuse the untimely and number barred
filing of his motion to reopen to apply for asylum and
withholding of removal. See 8 U.S.C. § 1229a(c)(7)(A), (C).
Equitable Tolling
Nor did the BIA err in declining to excuse the time and
number limitations based on Bajwa’s ineffective assistance of
counsel claim. As an initial matter, Bajwa does not
challenge the BIA’s dispositive and reasonable finding that
his ineffective assistance claim was foreclosed because he
failed to comply with Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988), which requires the movant to (1) file an affidavit
detailing his agreement with former counsel and (2) submit 4 proof that he notified former counsel and the proper
disciplinary authority of his allegations. See Jian Yun
Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46-47 (2d Cir.
2005); see also Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005) (concluding that petitioner waived
issues and claims not raised in his brief). Further, the BIA
did not err in finding that Bajwa did not exercise due
diligence in pursuing his ineffective assistance claim as
required because he failed to describe taking any action in
his deportation proceedings for more than a decade preceding
his motion to reopen. See Rashid v. Mukasey, 533 F.3d 127,
132 (2d Cir. 2008) (requiring a noncitizen to demonstrate
“due diligence” in pursuing his claim during “both the period
of time before the ineffective assistance of counsel was or
should have been discovered and the period from that point
until the motion to reopen is filed”); see also Jian Hua Wang
v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) (explaining that
“petitioner bears the burden of proving that he has exercised
due diligence in the period between discovering the
ineffectiveness of his representation and filing the motion”
and citing several cases in which this Court has held that “a 5 petitioner who waits two years or longer to take steps to
reopen a proceeding has failed to demonstrate due
diligence”).
Sua Sponte Reopening Authority
Because Bajwa did not demonstrate that the time and
number limitations applicable to his motions should be
excused, “his motion to reopen could only be considered upon
exercise of the [BIA’s] sua sponte authority.” Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009). We lack
jurisdiction to review the agency’s “entirely discretionary”
decision declining to reopen proceedings sua sponte. Ali v.
Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). However, “where
the Agency may have declined to exercise its sua sponte
authority because it misperceived the legal background and
thought, incorrectly, that a reopening would necessarily
fail, remand to the Agency for reconsideration in view of the
correct law is appropriate.” Mahmood, 570 F.3d at 469.
A remand is not warranted here. The BIA properly declined
to reopen sua sponte to permit Bajwa to avoid the June 1999
deadline to file a late motion to reopen to apply for CAT
relief. See In re G-D-, 22 I. & N. Dec. 1132, 1133-34 (BIA 6 1999) (“[W]e invoke our sua sponte authority sparingly,
treating it not as a general remedy for any hardships created
by enforcement of the time and number limits in the motions
regulations, but as an extraordinary remedy reserved for
truly exceptional situations.”); see also In re G-C-L-, 23 I.
& N. Dec. 359, 361-62 (BIA 2002) (declining to continue
reopening proceedings sua sponte to permit applications for
asylum based on a change in law that occurred more than five
years earlier).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT: Catherine O’Hagan Wolfe Clerk of Court