UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VARINDER SINGH, No. 20-70050

Petitioner, Agency No. A209-393-493 v. MERRICK B. GARLAND, Attorney OPINION General,

Respondent.

On Remand from the United States Supreme Court

Filed September 17, 2024 Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Donald W. Molloy, * District Judge.

Opinion by Judge Gould

* The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 2 SINGH V. GARLAND

SUMMARY**

Immigration

On remand from the United States Supreme Court, the panel granted Varinder Singh’s petition for review of a decision of the Board of Immigration Appeals denying his motion to reopen a removal order entered in absentia, vacated the BIA’s decision, and remanded. The panel previously granted Singh’s petition because his Notice to Appear lacked the time and date of his hearing. The Supreme Court vacated the panel’s judgment and remanded for the panel to address Singh’s argument that his in absentia removal order was subject to recission because his failure to appear at his hearing was due to “exceptional circumstances” under 8 U.S.C. § 1229a(b)(5)(C)(i). The panel concluded that the BIA, in rejecting Singh’s argument, failed to consider the totality of the circumstances. First, the BIA omitted certain factors. It never addressed the merits of his applications for relief, nor whether his removal would be unconscionable. The BIA also did not consider the extent to which the hearing was rescheduled. Second, the panel concluded that the BIA erred by failing to provide an adequately reasoned decision on the factors it did analyze. For example, in rejecting Singh’s claim that he expected his attorney to receive hearing notices and relied on his attorney’s repeated statements that his hearing was set for 2021, the BIA summarily concluded that Singh did not ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SINGH V. GARLAND 3

satisfy the factors set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), for ineffective assistance of counsel claims. However, the panel explained that Singh did not have to substantially comply with Lozada for the BIA to consider the involvement of his attorney as one of many occurrences that, together, might constitute exceptional circumstances. Based on the BIA’s limited analysis and omission of certain factors, the panel remanded because it could not assess whether exceptional circumstances warranted recission of Singh’s in absentia removal order

COUNSEL Saad Ahmad (argued), Saad Ahmad & Associates, Fremont, California, for Petitioner. William C. Minick (argued), Trial Attorney; Elizabeth K. Fitzgerald-Sambou, Senior Litigation Counsel; Linda S. Wernery, Assistant Director; Civil Division, Office of Immigration Litigation; Jeffrey B. Clark, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; for Respondent. 4 SINGH V. GARLAND

OPINION GOULD, Circuit Judge:

Petitioner Varinder Singh, a native and citizen of India, seeks recission of a removal order entered in absentia. We previously granted Singh’s petition because the government did not provide Singh with a Notice to Appear (NTA) setting forth the time and date of removal proceedings in compliance with 8 U.S.C. § 1229(a)(1), but the Supreme Court rejected our interpretation of this statutory provision. Campos-Chaves v. Garland, 144 S. Ct. 1637, 1649 (20