Hardeep Singh v. Alberto R. Gonzales, Attorney General

491 F.3d 1090 Hardeep SINGH, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee. No. 05-55933. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 14, 2007. Filed June 25, 2007. Esperanza V. Bada, Law Offices of Esperanza V. Bada, La Puente, CA, for the petitioner. Gene C. Arai, Law Offices of Esperanza V. Bada, La Puente, CA, for the petitioner. Debra Wong Yang, United States Attorney, Los Angeles, CA, for the respondent. Leon M. Weidman, Chief Assistant United States Attorney, Los Angeles, CA, for the respondent. Gwendolyn M. Gamble, Assistant United States Attorney, Los Angeles, CA, for the respondent. Appeal from the United States District Court for the Central District of California; Dale S. Fischer, District Judge, Presiding. D.C. No. CV-04-05890-DSF. Before: J. CLIFFORD WALLACE, D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges. Opinion By Judge D.W. NELSON; Concurrence by Judge WALLACE. OPINION D.W. NELSON, Senior Circuit Judge. 1 Hardeep Singh ("Singh"), a native and citizen of India, petitions for review the district court's denial of his petition for writ of habeas corpus. We deny the petition for review…

Opinion By Judge D.W. NELSON; Concurrence by Judge WALLACE.

OPINION

Hardeep Singh (“Singh”), a native and citizen of India, petitions for review the district court’s denial of his petition for writ of habeas corpus. We deny the petition for review because the motion to reopen was untimely and Singh was not entitled to equitable tolling because of his lack of due diligence.

I. FACTUAL AND PROCEDURAL BACKGROUND

Singh entered the United States on or about March 13, 1998 as an inadmissible alien without a valid visa. The Immigration and Naturalization Service (INS) charged Singh with being removable under 8 U.S.C. § 1227 (a)(1)(A) as an alien who lacked a valid entry document. On June 15, 1998, Singh filed an application for asylum and withholding of removal, alleging past persecution on account of his Sikh religion and unfounded suspicions by the Indian police that he was connected with a known terrorist, Rham Singh (“Rham”).

At his merits hearing on November 20, 1998, Singh was represented by Viney Gupta (“Gupta”), who claimed that he “came on this case” a week prior to the hearing. Gupta requested a continuance to obtain supporting documents for the asylum application. The…

concurring:

I agree with the majority’s jurisdictional determination, but write separately concerning the issue of equitable tolling. In denying Singh’s motion to reopen, the Board relied on Singh’s statement in his brief that he discovered Gupta’s ineffective assistance of counsel a few weeks after the Board’s March 2003 ruling. In my view, this is a finding by the Board on the discovery issue. Singh does not challenge this finding in his petition for review. Because he failed to make a timely effort to remedy the ineffective assistance after he discovered it, Singh’s petition for review must be denied.

The majority takes a different approach, which I question. They state that Singh “admits that he became suspicious of the possibility that Gupta was providing ineffective assistance of counsel when he spoke with his relatives,” but that Singh did not “definitively learn” of the ineffective assistance until he retained new counsel in September 2003. Singh’s affidavit attached to his brief in support of his motion to reopen does not indicate that he shared his relatives’ misgivings about Gupta’s performance at the time. The majority must, then, rely on Singh’s brief in support of…