Singh v. Barr BIA A073 531 048

19-686
Singh v. Barr
BIA
A073 531 048

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 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 10
th
day of April, two thousand twenty. 4
5
PRESENT: 6
DENNIS JACOBS, 7
DEBRA ANN LIVINGSTON, 8
SUSAN L. CARNEY, 9
Circuit Judges. 10
_____________________________________ 11
12
HAMINDER SINGH, 13
Petitioner, 14
15
v. No. 19- 686 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Gary J. Yerman, Esq., New York, NY. 23
24
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 25
General; Cindy S. Ferrier, Assistant 26
Director; Surell Brady, Trial Attorney, 27
Office of Immigration Litigation, 28
United States Department of Justice, 29
Washington, DC. 30

2

UPON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petition for review 3
is DENIED. 4
Petitioner Haminder Singh, a native and citizen of India, 5
seeks review of a 2019 decision of the BIA denying Singh's 6
motion to reconsider and reopen. In re Haminder Singh, No. A
7
073 531 048 (B.I.A. Feb. 28, 2019). We assume the parties’ 8
familiarity with the underlying facts and procedural history. 9
The current petition is timely only as to the BIA’s 2019 10
decision denying reconsideration and reopening; our review is 11
thus limited to that decision. See Ke Zhen Zhao v. U.S. Dep’t 12
of Justice, 265 F.3d 83, 89–90 (2d Cir. 2001) (explaining 13
that separate petitions for review must be timely filed from 14
the final order of removal and any subsequent denial of 15
reopening). Further, Singh has waived any challenge to the 16
BIA’s denial of reconsideration by not addressing the BIA’s 17
determination that he did not show a legal or factual error 18
in its May 2018 decision. See Yueqing Zhang v. Gonzales, 426 19
F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005) (petitioner abandons 20
issues and claims not raised in his brief). Accordingly, the 21
only decision on review before us now is the BIA’s 2019 denial 22

3

of reopening. 1
We review the BIA’s denial of a motion to reopen “for 2
abuse of discretion, mindful that motions to reopen are 3
disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) 4
(internal quotation marks omitted). When the BIA considers 5
evidence of country conditions in evaluating a motion to 6
reopen, we review the BIA’s factual findings under the 7
substantial evidence standard. Jian Hui Shao v. Mukasey, 546 8
F.3d 138, 169 (2d Cir. 2008). 9
An alien ordinarily must move to reopen no later than 90 10
days after entry of the final administrative decision. 11
See 8 C.F.R. § 1003.2(c)(2). But this time limitation does 12
not apply if the motion is filed to apply for asylum “based 13
on changed circumstances arising in the country of 14
nationality or in the country to which deportation has been 15
ordered, if such evidence is material and was not available 16
and could not have been discovered or presented at the 17
previous hearing.” Id. § 1003.2(c)(3). “In determining 18
whether evidence accompanying a motion to reopen demonstrates 19
a material change in country conditions that would justify 20
reopening, [the agency] compare[s] the evidence of country 21
conditions submitted with the motion to those that existed at 22

4

the time of the merits hearing below.” In re S-Y-G-, 24 I. & 1
N. Dec. 247, 253 (BIA 2007). We concluded that the BIA did 2
not abuse its discretion in denying reopening because, as 3
discussed below, Singh’s evidence did not establish a change 4
in conditions or that any change was material to his asylum 5
claim. 6
Substantial evidence supports the BIA’s conclusion that 7
the evidence was insufficient to establish a change in 8
conditions occurring since Singh’s 1996 hearing. 9
See 8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N. 10
Dec. at 253. The documents Singh submitted with his motion do 11
not discuss country conditions in India and do not establish 12
a change in the relevant period. In re S-Y-G-, 24 I. & N. 13
Dec. at 253. Singh’s motion argued that conditions have 14
worsened, citing in support of his argument a Human Rights 15
Watch report and an online article stating that a Sikh 16
activist from Scotland had been arrested upon his return to 17
India. But the quoted portion of the Human Rights Watch report 18
does not provide specific information about Sikhs, and Singh 19
did not provide information about the reliability of the 20
source on which the online article relied. 21
Singh asks this Court to take judicial notice of a U.S. 22

5

Commission on International Religious Freedom Report, but we 1
are limited to “the administrative record on which the order 2
of removal is based.” 8 U.S.C. § 1252(b)(4)(A). Further, the 3
BIA was not required to consider the country conditions 4
evidence submitted with Singh’s prior motion to reopen, 5
because it had previously considered this evidence when it 6
denied reopening in May 2018. As noted, that decision is not 7
before this Court. See Ke Zhen Zhao, 265 F.3d at 89–90. 8
Accordingly, the BIA did not err in finding no material 9
change. 10
Nor did the BIA abuse its discretion in denying Singh’s 11
motion to reopen based on his failure to overcome the IJ’s 12
underlying adverse credibility determination with regard to 13
Singh. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) 14
(finding no abuse of discretion in BIA’s denial of motion to 15
reopen when it “clearly explained that the evidence submitted 16
by petitioner in support of her motion was not ‘material’ 17
because it did not rebut the adverse credibility finding that 18
provided the basis for the [immigration judge’s] denial of 19
petitioner’s underlying asylum application”). The card 20
purportedly showing that Singh is a member of Youth Akali Dal 21
Amritsar USA, Inc., did not remedy the defects in Singh’s 22

6

original claim because the card was issued in June 2018, after 1
the BIA’s denial of his previous motion to reopen. Thus, the 2
2018 card did not corroborate that he engaged in relevant 3
political activities at the time of his original or 2017 4
asylum application. 5
The BIA also did not abuse its discretion by not 6
crediting a letter from the Sikh Cultural Society, Inc., 7
because that letter was prepared after the BIA’s denial of 8
Singh’s previous motion to reopen and, in any event, was 9
lacking in detail. See Qin Wen Zheng v. Gonzales, 500 F.3d 10
143, 147–48 (2d Cir. 2007) (holding that BIA may decline to 11
credit documentary evidence submitted in support of a motion 12
to reopen based on legitimate concerns, which may stem from 13
immigration judge’s prior adverse credibility determination, 14
about petitioner’s credibility). Accordingly, the BIA could 15
reasonably determine that any evidence of increased 16
persecution of Sikh political activists or Sikh practitioners 17
was not material because Singh did not rebut the adverse 18
credibility determination. See Kaur, 413 F.3d at 234. Because 19
the BIA did not abuse its discretion in determining that Singh 20
did not show a material change in conditions in India, it did 21
not err in denying Singh’s motion as untimely and number 22

7

barred. See Ali, 448 F.3d at 517. 1
For the foregoing reasons, the petition for review is 2
DENIED. Singh’s stay motion and the Government’s motion to 3
expedite are DENIED as moot.
4
FOR THE COURT: 5
Catherine O’Hagan Wolfe, 6
Clerk of Court 7