Lovepreet Singh v. Loretta Lynch
670 F. App'x 216
| 5th Cir. | 2016Background
- Petitioner Lovepreet Singh, an Indian national, seeks review of the BIA’s denial of his second motion to rescind and reopen an in absentia removal order.
- Singh argued he merited equitable tolling of filing deadlines because his prior attorney provided ineffective assistance when preparing his first motion to rescind.
- The government and BIA treated Singh’s second motion as number- and time-barred absent equitable tolling.
- Singh failed to update the immigration court with his new address after release and was personally served with the Notice to Appear at the § 1229(a)(1)(F) address.
- Singh did not maintain communication with his counsel of record (who mailed the hearing notice to the last provided address), and the allegedly ineffective attorney was not counsel of record when Singh missed the hearing.
- The BIA found Singh’s failure to appear resulted from his own noncompliance, not ineffective assistance, and denied equitable tolling; the Fifth Circuit denied review of the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Singh is entitled to equitable tolling of a number-/time-barred motion to rescind and reopen | Prior counsel’s ineffective assistance caused delay and justifies equitable tolling | Singh failed to update his address and failed to communicate with counsel; no exceptional circumstances caused the default | Denied — record shows Singh’s own failures, not ineffective assistance, so no equitable tolling |
| Whether 180‑day deadline applies to notice-based rescission motions | Singh contends counsel missed 180‑day filing window | Government/BIA: 180‑day limit applies only if motion alleges failure to appear was due to exceptional circumstances | Court: 180‑day rule irrelevant here absent an exceptional-circumstances claim; BIA permissibly relied on that standard |
| Whether counsel’s strategic choice not to advance an exceptional‑circumstances argument was ineffective assistance | Singh says counsel should have argued exceptional circumstances | BIA: strategy choice not ineffective; counsel of record at time of default did not act ineffectively | Held: Strategic decisions and absence of counsel-of-record misconduct do not establish ineffective assistance |
| Standard of review for denial of motion to reopen/rescind | N/A (procedural) | N/A | Applied highly deferential abuse-of-discretion standard; BIA decision not arbitrary or capricious |
Key Cases Cited
- Mata v. Lynch, 135 S. Ct. 2150 (2015) (jurisdiction to review equitable tolling of motion-to-reopen deadline)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir.) (2009) (review standard and abuse-of-discretion test for motions to reopen)
- Altamirano-Lopez v. Gonzales, 435 F.3d 547 (5th Cir. 2006) (motions to reopen are disfavored and require a heavy burden)