NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 22-2167 _____________ KIRPAL SINGH, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A077-911-909) Immigration Judge: Eugene Pugliese _______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 26, 2023 Before: HARDIMAN, KRAUSE, and MATEY, Circuit Judges. (Filed: March 10, 2023) _______________ OPINION ∗ _______________ ∗ This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge. Kirpal Singh petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying as untimely his motion to reopen proceedings and declining to exercise its sua sponte authority to reopen. Seeing no error, we will dismiss the petition in part and deny the petition in part. I. Singh, a citizen of India, was charged with removability when he entered the United States in 1999. During removal proceedings in 2005, Singh admitted the allegations against him and conceded his removability but asked for asylum under the Convention Against Torture. Singh’s counsel (“Getachew”) told the Immigration Judge (“IJ”) that Singh was not fluent in English, but Getachew waived the help of an interpreter. The IJ then provided the forms necessary for Singh’s asylum request and ordered him to be fingerprinted. At another hearing the next year, Getachew again waived an interpreter and was reminded by the IJ of the importance of getting Singh’s fingerprints processed. Singh’s merits hearing was held in 2007. Because Singh still had not had his fingerprints processed per the IJ’s instructions, Singh’s applications for asylum and withholding of removal were denied. The BIA upheld these denials and we dismissed Singh’s appeal for failure to file a brief and appendix. In 2020, Singh moved to reopen his case, claiming Getachew provided ineffective representation. The BIA agreed that Getachew’s counsel was deficient but declined to reopen the proceedings since Singh had not exercised the necessary due diligence after his 2 discovery of Getachew’s ineffective representation. The BIA also declined to exercise its sua sponte authority to reopen. Singh now brings this timely appeal. 1 II. A motion to reopen proceedings must be filed within ninety days after the disposition. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). A petitioner who does not file in this window, as here, must demonstrate due diligence and extraordinary circumstances to qualify for equitable tolling. Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014); Alzaarir v. Att’y Gen., 639 F.3d 86, 90 (3d Cir. 2011) (per curiam) (“Ineffective assistance of counsel can serve as a basis for equitable tolling if substantiated and accompanied by a showing of due diligence.”). If the BIA does not apply equitable tolling and refuses to sua sponte reopen proceedings, a petitioner must show that the BIA’s refusal to do so resulted from its reliance “on an incorrect legal premise.” Park v. Att’y Gen., 846 F.3d 645, 651, 656 (3d Cir. 2017). Because Singh has …
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