Singh v. Sessions
688 F. App'x 581
| 10th Cir. | 2017Background
- Singh, an Indian national, entered the U.S. in March 2014, was placed in removal proceedings, released on bond, and provided a Tennessee address.
- He retained Genet Getachew to file a change-of-venue motion; Singh later learned she never filed it. He then retained Mohammed Arif (who purported to be an attorney) to represent him at an August 2014 hearing.
- Singh did not attend the hearing, purportedly due to a back injury; an unidentified representative appeared, requested a continuance, and provided a New York address; the IJ denied the continuance and ordered removal in absentia.
- Arif filed a pro se motion to reopen months later; the IJ denied it as untimely for failing to show "exceptional circumstances." Singh’s first motion to reopen was not appealed.
- Singh’s new counsel filed a second motion to reopen asserting ineffective assistance by Getachew and fraud by Arif and sought equitable tolling; the IJ denied as number-barred (only one motion to reopen allowed) and the BIA affirmed, finding no prejudice from counsel and relying on the IJ’s finding that Singh’s back injury was not shown to be an exceptional circumstance.
- Singh petitioned for review; the Tenth Circuit denied the petition, concluding the BIA did not abuse its discretion and Singh failed to exhaust challenge to the IJ’s exceptional-circumstances finding.
Issues
| Issue | Singh's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion by denying second motion to reopen as number-barred and refusing equitable tolling | Ineffective assistance by Getachew and fraud by Arif prevented timely relief; equitable tolling warranted | Motion was number-barred and Singh did not show prejudice from counsel’s actions so tolling not warranted | Denied — BIA did not abuse discretion; no prejudice shown, so equitable tolling not applied |
| Whether failure to file change-of-venue prejudiced Singh | Getachew’s failure to file caused inability to present case; prejudice excusing absence | Even if filed, failure to appear is not excused by mere submission; Singh gave no showing what missing evidence would be | Denied — submission of motion would not excuse absence; Singh failed to show likely different outcome |
| Whether late, unsupported first motion to reopen prejudiced Singh | Arif’s delay and pro se filing deprived Singh of opportunity to present evidence | Singh failed to present evidence that earlier filing would have changed result | Denied — no showing of prejudice or reasonable likelihood of different outcome |
| Whether IJ erred in finding back injury not an "exceptional circumstance" | Singh contends injury prevented attendance and was decisive | BIA/IJ found injury not shown; Singh failed to exhaust administrative remedies on this issue | Court lacks jurisdiction to review exhaustion-failed issue; not considered on appeal |
Key Cases Cited
- Galvez Piñeda v. Gonzales, 427 F.3d 833 (10th Cir.) (standard for BIA abuse of discretion review)
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir.) (Lozada compliance and equitable tolling analysis)
- Riley v. INS, 310 F.3d 1253 (10th Cir.) (equitable tolling of motions to reopen for ineffective assistance)
- Tang v. Ashcroft, 354 F.3d 1192 (10th Cir.) (submission of venue motion does not excuse failure to appear)
- Osei v. INS, 305 F.3d 1205 (10th Cir.) (ineffective assistance can state a Fifth Amendment violation)
- Veloz-Luvevano v. Lynch, 799 F.3d 1308 (10th Cir.) (prejudice requirement for ineffective assistance claims)
- United States v. Aguirre-Tello, 353 F.3d 1199 (10th Cir.) ("reasonable likelihood" standard for demonstrating prejudice)