Simerjeet Singh v. Ashcroft, 381 F.3d 221, 235 3d Cir. 2004 . 3 Singh filed a motion to reopen…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2662
___________
SIMERJEET SINGH,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A70-703-005)
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
December 16, 2009
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed : December 17, 2009)
_________
OPINION
_________
PER CURIAM.
Petitioner Simerjeet Singh, a native and citizen of India, seeks review of the
Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen proceedings.
Because we conclude that the BIA did not abuse its discretion in denying that motion, we

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Pursuant to 8 U.S.C. § 1186a(c)(4)(B), the Attorney General has discretion to1
remove the conditional basis of permanent resident status for an alien who, although
divorced from the United States citizen spouse, nevertheless demonstrates that the
marriage was entered into in good faith.
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will deny Singh’s petition for review.
I.
Singh entered the United States without inspection in December 1992. His
status was eventually adjusted to that of a conditional permanent resident following his
marriage to Hattie Pender, a United States citizen. When the two divorced, the
Government terminated Singh’s conditional permanent resident status and initiated
removal proceedings. At a hearing before the Immigration Judge (“IJ”), Singh sought to
block his removal by arguing that he was entitled to relief under 8 U.S.C. §
1186a(c)(4)(B). In February 2006, the IJ denied the application, finding that Singh had1
“failed to show by a preponderance of the evidence that his marriage was entered into in
good faith and not for the purpose of obtaining an Immigration benefit.” On November
13, 2007, the BIA upheld the IJ’s findings and dismissed the appeal. On December 6,
2007, Singh filed a motion to remand, claiming that his daughter’s anticipated
naturalization entitled him to an adjustment of status. The BIA denied the motion on
February 1, 2008, finding that since the daughter’s naturalization process was still
pending, “any potential claim to adjustment of status is premature, and at best,
speculative.”

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Singh does not address this part of the BIA’s decision in his brief on appeal. As a2
result, any issues relating thereto are deemed waived. See Chen v. Ashcroft, 381 F.3d
221, 235 (3d Cir. 2004).
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Singh filed a motion to reopen proceedings on February 19, 2008, primarily
claiming that he received ineffective assistance from his previous counsel who did not
inform him that he could obtain a hardship waiver under § 1186a(c)(4)(A) (“extreme
hardship would result if such alien is removed”). On May 15, 2008, the BIA denied the
motion, concluding that it exceeded the numerical and time limitations for motions to
reopen under 8 C.F.R. § 1003.2(c)(2). The BIA determined that even if Singh could
overcome the motion’s procedural deficiencies, and presuming that his prior counsel’s
performance was deficient, Singh’s claim of “extreme hardship” lacked the requisite
merit to demonstrate any prejudice resulting from counsel’s deficient performance. The
BIA also determined that, insofar as Singh had raised a claim of ineffective assistance
based on counsel’s failure to advise him of his ability to file a petition for review with this
Court, Singh had “failed to substantially comply with the procedural requirements
provided in Matter of Lozada[, 19 I. & N. Dec. 637 (BIA 1988)] as it relates to this
claim.” Singh appealed, and the Government moved to dismiss his petition for review2
for lack of jurisdiction.
II.
We have jurisdiction to review final orders of the BIA under 8 U.S.C. §

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The Government cites to Urena-Tavarez v. Ashcroft, 367 F.3d 154 (3d Cir. 2004),3
and Cospito v. Att’y Gen., 539 F.3d 166 (3d Cir. 2008), for the proposition that we lack
jurisdiction to review the discretionary denial of waivers under 8 U.S.C. § 1186a(c)(4).
But we are not reviewing the denial of a discretionary hardship waiver; instead, we are
reviewing the BIA’s denial of Singh’s motion to reopen based on the alleged ineffective
assistance of his prior counsel. The Government, inadvertently perhaps, concedes this
distinction. (Gov’t Br. at 10) (“the Board did not adjudicate the hardship waiver[,] it
adjudicated a motion to reopen”). Moreover, Cospito, and each of the cases we cited to
therein, involved an alien’s attempt at direct judicial review of the denial of a
discretionary waiver, not review of the denial of a motion to reopen. Thus, the cases cited
to by the Government are easily distinguishable, and we deny its motion to dismiss. In
addition, Singh’s argument that the BIA lacked jurisdiction to adjudicate the hardship
waiver application fails for the reasons just discussed. See also Sevoian, 290 F.3d at 170.
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1252(a). We review the denial of a motion to reopen for abuse of discretion. See Borges3
v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005); see also Cruz v. Attorney General of the
United States, 452 F.3d 240, 242 (3d Cir. 2006). Under this standard, we may reverse the
BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,
290 F.3d 166, 174 (3d Cir. 2003). We exercise de novo review of the BIA’s
determination concerning an underlying procedural due process claim, such as a
determination that an alien has failed to comply with the Lozada requirements to establish
an ineffective assistance of counsel claim. See Fadiga v. Att’y Gen., 488 F.3d 142, 153
(3d Cir. 2007).
When a motion to reopen is denied on prima facie grounds, we review any
findings of fact for substantial evidence. See Sevoian, 290 F.3d at 174. Even if the
movant has made out a prima facie case, the BIA has discretion to deny a motion to
reopen if it is procedurally deficient. See 8 C.F.R. § 1003.2(a). In general, motions to

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reopen must be filed within ninety days from the date “the final administrative decision
was rendered,” and only one such motion is allowed. 8 C.F.R. § 1003.2(c)(2). A motion
to remand is equivalent to a motion to reopen for § 1003.2(c)(2) purposes where it
requests the relief normally sought in a motion to reopen. See Matter of Coelho, 20 I. &
N. Dec. 464, 471 (BIA 1992).
III.
Pursuant to Matter of Coelho, the BIA was permitted to construe Singh’s
motion to remand as a motion to reopen. See id. (“the motion to remand is in the nature
of a motion to reopen since the respondent requests additional proceedings to present
evidence . . . which was not available during the initial proceedings”). As a result, the
BIA did not abuse its discretion in concluding that Singh’s subsequent motion to reopen
was number-barred under 8 C.F.R. § 1003.2(c)(2). Nor did it abuse its discretion to the
extent it denied the motion to reopen on prima facie grounds. The BIA rightly concluded
that Singh’s ineffective assistance claim, based on the alleged failure of prior counsel to
apprise Singh of his eligibility for a § 1186a(c)(4)(A) hardship waiver, lacked merit
because Singh had not demonstrated that he was prejudiced by not having applied for that
waiver. To that end, we find no error in the BIA’s conclusion that Singh’s “simply
stating that he has a lawful permanent resident daughter and United States citizen
grandchildren, that he is a member of a Sikh association, that he is a business owner, and
that he is learning English, without further explanation of what, if any, hardships are

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involved, does not show a prima facie claim of extreme hardship.”
Accordingly, we will deny the petition for review.
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