Singh v. Holder
418 F. App'x 14
2d Cir.2011Background
- Singh seeks review of the BIA's June 22, 2008 decision denying his motion to reopen.
- Singh filed his January 2009 motion to reopen more than one year after the BIA's December 2007 decision (untimely).
- The untimeliness potentially bars relief unless equitable tolling applies for ineffective-assistance of counsel.
- The court has jurisdiction to review only constitutional claims and questions of law; here, ineffective-assistance-claim is a constitutional issue.
- The court affirms the BIA's denial, finding no prejudice from counsel's performance and no basis to toll the filing period.
- The result is a denial of the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is equitable tolling available for ineffective assistance? | Singh argues counsel's ineffectiveness warrants tolling. | Holder argues no prejudice shown and untimeliness stands. | No tolling; the prejudice requirement not met. |
| Did Singh show prejudice from counsel’s incompetence? | Singh contends lack of preparation affected credibility. | BIA appropriately weighed inconsistencies inherent in testimony. | Insufficient prejudice; inconsistencies were substantial. |
| Was the BIA’s denial of reopening an abuse of discretion? | Singh seeks reopening due to counsel’s ineffectiveness. | BIA properly denied as untimely and not equitably tolled. | No abuse of discretion; petition denied. |
| Does the court have jurisdiction to review the final removal order here? | N/A (constitutional claim help cited) | N/A | Court retains jurisdiction over constitutional claims and questions of law. |
Key Cases Cited
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (standard for reviewing motion to reopen and equitable tolling considerations)
- Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (due-process limitations on relief from immigration consequences)
- Rashid v. Mukasey, 533 F.3d 127 (2d Cir. 2008) (equitable tolling for ineffective assistance of counsel requires prejudice)
- Rabiu v. INS, 41 F.3d 879 (2d Cir. 1994) (prejudice requirement for tolling)
- Zheng Zhong Chen v. Gonzales, 437 F.3d 267 (2d Cir. 2006) (ineffective assistance claims do not excuse dishonest acts)