Dilbar SINGH, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 489 F. App'x 493

SUMMARY ORDER Dilbar Singh, a native and citizen of India, seeks review of a June 23, 2011, decision of the BIA denying his motion to reopen. In re Dilbar Singh, No. [ AXXX XXX XXX ] (B.I.A. June 23, 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). There is no dispute that Singh’s motion to reopen was untimely because it was filed more than eight years after the agency’s final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i).

However, time limitations on motions to reopen may be equitably tolled to accommodate claims of ineffective assistance of counsel, provided that, among other things, the movant has exercised “due diligence” in vindicating his rights. Celtic v. INS, 435 F.3d 167, 170 (2d Cir.2006). An alien is required to exercise due diligence in pursuing his case both before and after he has or should have discovered the alleged ineffective assistance. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir.2008). Here, the BIA reasonably found that Singh failed to demonstrate that he had exercised due diligence. Id.

While the BIA credited Singh’s contention that he had maintained regular contact with his prior counsel before December 2005, it nevertheless reasonably found that Singh did not recount any steps he had taken in pursuing his case between December 2005, when Singh admittedly ceased contacting his prior counsel, and October 2009, when Singh consulted with a new attorney and allegedly discovered his prior counsel’s ineffectiveness.

See Celtic, 435 F.3d at 172 (denying motion to reopen where petitioners’ “submissions in support of their second motion to reopen fail[ed] to provide even the slightest indication that they took any action to protect themselves”).

Although Singh argues that he ceased contacting his prior counsel in December 2005 because his counsel insisted that “it would take many years for [his] appeal to be decided” and had assured him that he would take care of Singh’s case, the BIA reasonably determined that Singh’s failure to contact his prior counsel to inquire as to the status of his case for nearly four years did not constitute due diligence. See Iavorski v. INS, 232 F.3d 124, 134 (2d Cir.2000) (finding a lack of due diligence when petitioner failed to investigate status of appeal for “nearly two years”).

Accordingly, the BIA did not abuse its discretion in denying the motion to reopen. Singh also challenges the BIA’s decision not to exercise its authority to reopen his proceedings sua sponte. Although we generally lack jurisdiction to consider the BIA’s “entirely discretionary” decision declining to sua sponte reopen a removal or deportation proceeding, see Ali, 448 F.3d at 518; Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.2009), we nevertheless retain jurisdiction to review such decisions when the BIA misperceives the law, see Mahmood, 570 F.3d at 469.

Here, however, the BIA did not misperceive the law in finding that Singh failed to show extraordinary circumstances warranting sua sponte reopening.

Moreover, even if we had jurisdiction to review such decisions not to sua sponte reopen, the BIA did not err in finding that Singh failed to demonstrate his prima fa-cie eligibility for CAT relief because, although the country conditions evidence in the record indicated that individuals held under custodial arrest or detention had been tortured by Indian authorities, the record did not establish that Singh would be arrested, detained, or otherwise placed under custodial supervision upon his return to India.

Nor did the BIA err in finding that Singh failed to demonstrate his prima facie eligibility for adjustment of status, as Singh failed to present any documentary evidence that the 1-130 immigrant visa petition that his wife filed on his behalf had been approved, or that a visa number was immediately available to him.

See, e.g., 8 U.S.C. § 1255(a) (allowing aliens who were inspected and admitted into the United States to adjust their status to that of a lawful permanent resident based on a family relationship, provided, inter alia, that they are “eligible to receive an immigrant visa” and “an immigrant visa is immediately available”); 8 U.S.C. § 1255(i)(l) & (2) (allowing certain aliens physically present in the United States to adjust their status to that of a lawful permanent resident based on a family relationship or job offer, provided, inter alia, that they are the beneficiaries of an approved visa petition, their priority date is current, and they pay an additional fee).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review. Singh’s pending motion for a stay of removal in this petition is DENIED as moot.