Charanjeet Singh v. Holder

FILED

NOT FOR PUBLICATION FEB 22 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

CHARANJEET SINGH, No. 05-73633

Petitioner, Agency No. A076-456-997

v.

MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

Respondent.

CHARANJEET SINGH, No. 08-73919

Petitioner, Agency No. A076-456-997

v.

ERIC H. HOLDER Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 9, 2010 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: NOONAN, BERZON and IKUTA, Circuit Judges.

Charanjeet Singh petitions for review of the denial of his motion to reopen

by the Board of Immigration Appeals ('BIA'). We have jurisdiction pursuant to

U.S.C. y 1252 and review for abuse of discretion. Mercado-Zazueta v. Holder,

580 F.3d 1102, 1104 (9th Cir. 2009). We grant the petition.

Singh filed his…

MEMORANDUM *

Charanjeet Singh petitions for review of the denial of his motion to reopen by the Board of Immigration Appeals (“BIA”). We have jurisdiction pursuant to 8 U.S.C. § 1252 and review for abuse of discretion. Mercado-Zazueta v. Holder, 580 F.3d 1102, 1104 (9th Cir.2009). We grant the petition.

Singh filed his motion to reopen on April 8, 2008, asserting that his previous attorney, Randhir Kang, was ineffective for failing to take appropriate, timely action after Singh married a U.S. citizen. Motions to reopen based on claims of ineffective assistance of counsel are typically subject to the procedural requirements of In re Lozada, 19 I & N Dec. 637 (BIA 1988), which include notifying prior counsel of the allegations, Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir.2003). The BIA denied Singh’s motion to reopen because the notice he sent to Kang was not sufficiently detailed.

In Morales Apolinar v. Mukasey, we held that “where a petitioner’s attorney has been suspended after failing to respond to prior charges of ineffective assistance, it would be futile for the petitioner to inform counsel of the accusations or file a complaint.” 514 F.3d 893, 897 (9th Cir. 2008). Here,…

“We will apply equitable tolling in situations where, despite all due diligence, [the party invoking equitable tolling] is unable to obtain vital information bearing on the existence of the claim.” Socop-Gonzalez v. INS., 272 F.3d 1176, 1193 (9th Cir.2001) (alteration in original) (internal quotation marks omitted). Petitioners are charged with their attorneys’ failure to act diligently. Valeriano v. Gonzales, 474 F.3d 669, 675 (9th Cir.2007). Singh’s new counsel received Singh’s file in late September *883 2007, but did not review the file sufficiently to discover a potential ineffective assistance of counsel claim until January 28, 2008, and did not file a motion to reopen until April 28, 2008. This delay does not constitute due diligence under any reasonable interpretation of the word. Given this lengthy delay, the BIA did not err in holding that Singh’s motion to reopen was time-barred for lack of diligence regardless when the limitations period began to run.