Amarjit KAUR, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 475 F. App'x 398

SUMMARY ORDER Amarjit Kaur, a native and citizen of India, seeks review of a June 11, 2011, decision of the BIA denying her motion to reopen. In re Amarjit Kaur, No. [ AXXX XXX XXX ] (B.I.A. June 11, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of this case. We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). There is no dispute that Kaur’s motion to reopen was untimely and number-barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see also 8 C.F.R. § 1003.2(c)(2).

The time and number limitations applicable to motions to reopen may be equitably tolled to accommodate claims of ineffective assistance of counsel. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006); see also Jin Bo Zhao v. INS, 452 F.3d 154, 159-60 (2d Cir.2006) (per curiam) (holding that the BIA erred in finding petitioner’s second motion to reopen number-barred, because his first motion was denied due to ineffective assistance). However, the mov-ant must demonstrate, inter alia, that she suffered actual prejudice as a result of counsel’s ineffective performance. Rabiu v. INS, 41 F.3d 879, 882 (2d Cir.1994).

Kaur argued that her prior counsel provided ineffective assistance by failing to pursue relief under the Convention Against Torture (“CAT”) either during the pendency of her appeal of the IJ’s denial of her motion to rescind her in absentia order of removal, or in subsequent motions to reopen. To show actual prejudice, Kaur was required to “make a prima facie showing that [s]he would have been eligible for the relief [sought] and that [s]he could have made a strong showing in support of [her] application” if not for her counsel’s ineffectiveness. Id., see also Esposito v.

INS, 987 F.2d 108, 111 (2d Cir.1993) (per curiam). Kaur failed to make such a showing. First, as the BIA noted, Kaur offered no evidence indicating that she would have established her prima facie eligibility for CAT relief at the time when her appeal was pending before the BIA. See Pierre v. Gonzales, 502 F.3d 109, 118-19 (2d Cir.2007).

Moreover, as the BIA noted, Kaur did not make a prima facie showing that she would have been eligible for CAT relief at the time when her former counsel filed her prior motions to reopen, because she failed to present any evidence indicating either that she would be singled out for torture by Indian security forces, or that a similarly-situated individual in her particular circumstances — i.e., a Sikh and member of the Shiromani Akali Dal Mann— would be subjected to torture. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 159-60 (2d Cir.2005).

Therefore, the BIA did not abuse its discretion in denying Kaur’s motion to reopen. For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).