Manpreet Singh v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 23, 2020
• Docket: 19-14290
• Status: Unpublished

Opinion

Case: 19-14290 Date Filed: 09/23/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14290 Non-Argument Calendar ________________________

Agency No. A208-183-157

MANPREET SINGH,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 23, 2020)

Before JORDAN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM: Case: 19-14290 Date Filed: 09/23/2020 Page: 2 of 4

Manpreet Singh seeks review of an order of the Board of Immigration

Appeals (BIA) denying as untimely his motion to reopen removal proceedings,

which was based on ineffective assistance of counsel and filed approximately one

year after the BIA’s final order of removal. Singh argues that he demonstrated the

requisite diligence to be entitled to equitable tolling. After review, 1 we deny

Singh’s petition.

The BIA did not abuse its discretion in denying Singh’s motion to reopen

because Singh did not file the motion within 90 days of the BIA’s final

administrative removal order. See Immigration and Nationality Act (INA)

§ 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i) (providing a motion to reopen must

generally be filed within 90 days of the final administrative removal order); 8

C.F.R. § 1003.2(c)(2) (same). The BIA affirmed the denial of Singh’s applications

for asylum, withholding of removal, and relief under the Convention Against

Torture on September 14, 2017. Singh did not file his motion to reopen until

September 10, 2018, well after the statutory time limit for filing had expired.

Further, the BIA did not abuse its discretion in concluding Singh was not

entitled to equitable tolling because Singh failed to show he pursued his rights

1 We review the denial of a motion to reopen removal proceedings for an abuse of discretion. See Gbaya v. U.S. Att’y Gen., 342 F.3d 1219, 1220 (11th Cir. 2003). “In this particular area, the BIA’s discretion is quite broad.” Id. (quotation marks omitted). Our review is limited to whether the BIA’s exercise of discretion was arbitrary or capricious. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). 2 Case: 19-14290 Date Filed: 09/23/2020 Page: 3 of 4

diligently. See Avila-Santoyo v. U.S. Att’y Gen., 713 F.3d 1357, 1361, 1364 (2013)

(en banc) (providing 90-day filing requirement is a “non-jurisdictional claim-

processing rule” subject to equitable tolling); Ruiz-Turcios v. U.S. Att’y Gen., 717

F.3d 847, 851 (11th Cir. 2013) (explaining equitable tolling requires a litigant to

show “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way”) (quoting Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005)). Singh argues that he first learned of his prior counsel’s

ineffective assistance when he retained new counsel in February 2018. However,

Singh did not show why he waited five months to retain new counsel when, as the

BIA noted, the final order of removal pointed out serious deficiencies in his appeal,

including that Singh’s counsel did not “meaningfully address” the basis of the

immigration judge’s decision and sought to challenge a credibility finding that the

immigration judge never made. The BIA also noted, and Singh does not dispute,

that a copy of this order was mailed directly to Singh. Although a motion to

reopen based on ineffective assistance of counsel carries with it certain procedural

requirements, see Gbaya, 342 F.3d at 1221, Singh also did not show why, once

new counsel was retained, another seven months elapsed before the motion to

reopen was filed. The BIA therefore acted within its discretion in concluding

Singh failed to show he pursued his rights diligently.

3 Case: 19-14290 Date Filed: 09/23/2020 Page: 4 of 4

To the extent Singh argues he was prejudiced by his prior counsel’s

performance, we do not reach that argument because “eligibility for equitable

tolling is a threshold showing that must be made before the merits of the claim or

claims underlying a motion to reopen can be considered.” See Ruiz-Turcios, 717

F.3d at 851; see also INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

rule courts and agencies are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”). Accordingly, we deny Singh’s

petition.

PETITION DENIED.