Singh v. Gonzales

• Decision Date: 25 June 2007
• Docket Number: No. 05-55933.,05-55933.
• Citation: 491 F.3d 1090
• Parties: Hardeep SINGH, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

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.

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 Immigration Judge ("IJ") admonished Gupta for being unprepared for the hearing, but nevertheless granted the continuance to April 16, 1999. At the April hearing, Gupta submitted supporting documents with incomplete translations that lacked authentication. The IJ refused to admit the documents. After the testimony of Singh and his cousin Gursharan Kaur, the IJ continued the hearing to July 15, 1999 for translation and authentication of the documents submitted to support the asylum application. At the July hearing, Gupta again failed to produce authenticated documents. The IJ denied Singh's application for asylum and withholding of removal concluding that Singh was not credible and that he had failed to show past persecution.

On March 28, 2003, the BIA affirmed the IJ's decision without opinion. Gupta told Singh that his appeal had been denied and that "he was going to file an appeal of the denial." On April 9, 2003, Singh, through his former counsel Gupta, filed a petition for review and a motion to stay with this Court, in which he contended that the BIA overlooked "the fact that petitioner is not deportable under new relief through his attached receipt for labor certification application as an interstate truck driver which was timely filed while INA 245(i) was in effect."

On September 30, 2003, Singh consulted with new counsel for the purpose of filing a motion to reopen on the basis of ineffective assistance of counsel. On November 17, 2003, Singh filed a motion to reopen through his current counsel.¹ In an affidavit submitted with his motion to reopen, Singh stated:

A few weeks [after the BIA's decision], I talked to my relatives and they told me that I should get another attorney because they think that Mr. Gupta was not doing his job. I consulted with my present lawyer on September 30, 2003 and she agreed to take over my case.

On April 20, 2004, this Court dismissed the petition for review filed by his former counsel for failure to file an opening brief, which was due on November 17, 2003.

On May 18, 2004, the BIA denied the motion to reopen because it was filed more than 90 days after the BIA decision of March 28, 2003. The BIA determined:

We acknowledge that the Ninth Circuit Court of Appeals has applied the principles of equitable tolling to excuse the lateness of filings . . . . However, an individual seeking to rely upon "equitable tolling" of a filing deadline must show that he has acted with due diligence. See Iturribarria v. INS, 321 F.3d 889, 899 (9th Cir.2003). The respondent states that he discovered prior counsel had provided ineffective assistance "a few weeks" after our March 28, 2003, decision . . . . However, he did not consult current counsel for months, until September 30, 2003. . . . Such delay does not evidence due diligence.

The BIA thus denied Singh's motion to reopen because he did not exercise due diligence after becoming suspicious of his lawyer's fraud.

On July 20, 2004, Singh filed a petition for writ of habeas corpus in the United States District Court for the Central District of California, challenging on due process grounds, the denial of his motion to reopen. On April 18, 2005, the district court held that it lacked jurisdiction to consider the habeas petition because Singh had not exhausted the available judicial remedies. In particular, the court found that Singh had not filed a petition for review of the BIA's denial of his motion to reopen with this Court.

On June 17, 2005, Singh appealed from the district court's denial of the habeas petition, claiming: (1) the filing of the motion to reopen beyond the 90-day period was excusable under the equitable tolling doctrine; and (2) he was denied due process because of Gupta's ineffective assistance.

II. JURISDICTION

This case presents the issue of the scope of our jurisdiction under the REAL ID Act, Pub.L. No. 109-13, § 106(a), 109 Stat. 231 (2005) (RIDA). The issue is whether we can consider Singh's appeal of the district court's denial of his habeas petition filed after the enactment of the REAL ID Act as a timely petition for review. We conclude that we can.

Congress determined that habeas petitions filed under 28 U.S.C. § 2241 challenging final orders of removal that were pending in the district court at the time of enactment were to be transferred to the court of appeals and converted into timely petitions for review. Pub.L. 109-13, § 106(c), 119 Stat. 231, 311. In addition, while the Act did not address this particular issue, we have held that appeals from denials of habeas petitions pending upon enactment of the REAL ID Act will in most cases be treated as timely petitions for review. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1053 n. 3 (9th Cir. 2005).

We have not addressed how to treat appeals of habeas petitions filed after enactment of the Act but within the sixty-day limitations period for filing the appeal under Federal Rules of Appellate Procedure 4(a)(1)(B). On April 18, 2005, the district court denied Singh's habeas petition for failure to exhaust judicial remedies. At the time of the denial of his habeas petition, Singh had sixty days to appeal. He filed a notice of appeal of the habeas petition on June 17, 2005, within this sixty-day period. In the period between the district court's denial of Singh's habeas petition and his filing of an appeal, Congress enacted the REAL ID Act on May 11, 2005. The transfer provision in RIDA states:

TRANSFER OF CASES — If an alien's case, brought under section 2241 of title 28, United States Code, and challenging a final administrative order of removal, deportation, or exclusion, is pending in a district court on the date of the enactment of this division, then the district court shall transfer the case (or the part of the case that challenges the order of removal, deportation, or exclusion) to the court of appeals for the circuit in which a petition for review could have been properly filed under section 242(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this section, or under section 309(c)(4)(D) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note). The court of appeals shall treat the transferred case as if it had been filed pursuant to a petition for review under section 242, except that subsection (b)(1) of such section shall not apply.

Pub.L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005) (emphasis added). The first question is whether Singh's habeas petition was "pending" in the district court on the date of the enactment of RIDA. RIDA does not define what it means for a case to be "pending" in the district court. The Supreme Court has interpreted "pending" for purposes of the federal Antiterrorism and Effective Death Penalty Act of 1996 to "cover the time between a lower state court's decision and the filing of a notice of appeal to a higher state court." Carey v. Saffold, 536 U.S. 214, 217, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). This interpretation is supported by the principle that it is upon the filing of a notice of appeal that "jurisdiction over the matter being appealed normally transfers from the district court to the appeals court." Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001); see also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam) ("The filing of a notice of appeal . . . confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.").

We hold that a habeas petition is "pending" in the district court within the meaning of RIDA's transfer provision when the notice of appeal was not filed at the time RIDA was enacted, but was filed within the sixty day limitations period for filing a timely appeal...