Introduction

In this summary order, the United States Court of Appeals for the Second Circuit denied Harinder Singh Basra’s petition for review of a Board of Immigration Appeals (BIA) decision that refused to reopen his removal proceedings. Basra, a native and citizen of India, sought reopening in 2011 (decided by the BIA in 2012) on two grounds: (1) materially changed country conditions in India that would excuse the otherwise fatal time and number limits on motions to reopen; and (2) equitable tolling based on ineffective assistance of counsel (IAC). The panel—Circuit Judges Dennis Jacobs, Steven J. Menashi, and Eunice C. Lee—held that Basra’s motion was untimely and number‑barred, that he failed to establish materially changed country conditions in light of an earlier adverse credibility finding, and that he did not act with due diligence to warrant equitable tolling of the filing deadlines for his IAC claim.

The court also denied Basra’s request to file a supplemental brief, emphasizing that no governing law had changed since his opening brief, and reiterated that review is confined to the administrative record under 8 U.S.C. § 1252(b)(4)(A). All pending motions and applications were denied and stays vacated.

Although summary orders do not have precedential effect under this Court’s Local Rule 32.1.1, the decision is a clear and instructive application of well‑established standards governing motions to reopen, the changed country conditions exception, and equitable tolling for IAC claims.

Summary of the Opinion

The Second Circuit affirmed the BIA’s denial of Basra’s third motion to reopen, filed more than seven years after his 2004 final order of removal. The court held:

• Basra’s motion was untimely and number‑barred under 8 U.S.C. § 1229a(c)(7)(A), (C)(i) and 8 C.F.R. § 1003.2(c)(2).
• He failed to qualify for the “changed country conditions” exception, because his motion did not overcome the prior adverse credibility determination nor did it present an independent claim; his evidence showed continuity—not material worsening—of conditions for politically active Sikhs.
• Personalized affidavits (including from his nephew) could be discounted given the underlying adverse credibility finding, and his evidence did not resolve the prior inconsistencies or affidavit similarities noted by the immigration judge (IJ).
• His IAC claim could not equitably toll the deadline due to lack of due diligence: Basra knew in 2007 that his BIA appeal had been dismissed but did not raise IAC tied to that dismissal until his 2011 motion.
• The panel denied his request to supplement briefing and refused any remand for extra‑record evidence in light of established record‑review constraints and the availability of agency reopening procedures.

Accordingly, the petition for review was denied.

Analysis

1. Precedents and Authorities Cited

The court’s reasoning rests on a familiar constellation of statutory, regulatory, and precedential principles:

• Record‑based review and no remand for extra‑record evidence: 8 U.S.C. § 1252(b)(4)(A) confines judicial review to the administrative record. Citing Xiao Xing Ni v. Gonzales, 494 F.3d 260, 262 (2d Cir. 2007), the panel reaffirmed that courts do not remand merely to consider extra‑record documents when BIA procedures exist to reopen for new evidence.
• Standards of review: Motions to reopen are reviewed for abuse of discretion; factual findings for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).
• Time/number limits and the “changed country conditions” exception: 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2) limit aliens to one motion to reopen within 90 days of the final order. The exception for asylum‑based reopening demands material, previously unavailable evidence of changed conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
• Adverse credibility’s effect on reopening: Matter of F‑S‑N‑, 28 I. & N. Dec. 1, 3 (B.I.A. 2020), and Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005), establish that when the original asylum claim failed on credibility grounds, a reopening request based on country changes must either rehabilitate that credibility determination or present an independent claim unrelated to the discredited evidence.
• Weight and credibility of personalized evidence: Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) allows the agency to discount personalized evidence after an adverse credibility finding. Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) confirms deference to the agency’s weighing of documentary evidence.
• Comparative assessment of country conditions: Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020), quoting Matter of S‑Y‑G‑, 24 I. & N. Dec. 247, 253 (B.I.A. 2007), requires the BIA to compare conditions at the time of the original merits hearing with conditions at the time of the motion. Incremental or incidental changes are insufficient. Matter of S‑Y‑G‑, 24 I. & N. Dec. at 257.
• Ineffective assistance and equitable tolling: Cekic v. INS, 435 F.3d 167, 170 (2d Cir. 2006), and Iavorski v. INS, 232 F.3d 124, 135 (2d Cir. 2000), allow equitable tolling for IAC if the alien shows due diligence. The IAC merits standard, drawn from Rabiu v. INS, 41 F.3d 879, 882–83 (2d Cir. 1994) and Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993), asks whether competent counsel would have acted otherwise and whether prejudice resulted. Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008) requires diligence in two periods: before and after discovering the ineffective assistance. Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007) emphasizes that even several months of unexplained delay can defeat diligence.

2. The Court’s Legal Reasoning

A. Motion to Reopen: Time and Number Bars

Basra’s 2012 motion (his third) arrived over seven years after his 2004 final removal order, rendering it both untimely and number‑barred. The statutory and regulatory scheme strictly limits motions to reopen to one within 90 days unless a narrow exception applies. The Second Circuit found no abuse of discretion in the BIA’s application of these limits.

B. Changed Country Conditions Exception

The panel underscored two threshold barriers that movants face when their initial asylum denial rested on adverse credibility:

• A movant must either (i) overcome or rehabilitate the prior adverse credibility determination, or (ii) advance a new, independent claim that does not rely on the discredited narrative (Matter of F‑S‑N‑; Kaur).
• Evidence must show material changes since the original hearing, not mere continuity or incremental shifts (Tanusantoso; Matter of S‑Y‑G‑).

Basra failed both prongs. First, his submissions—his own affidavit, his nephew’s affidavit recounting a 2011 episode allegedly involving police inquiring about Basra, complaints regarding former counsel, and generalized reports on India—did not reconcile the prior inconsistencies in his testimony (e.g., how many arrests, what occurred during detentions) or address the IJ’s concern about “striking similarities” in supporting affidavits. Under Qin Wen Zheng and Y.C., the BIA was entitled to discount his personalized, credibility‑dependent evidence. Second, on country conditions, the record reflected continuing arrests of Sikh separatists and an increase in custodial deaths across the Punjab, but not a materially worsened environment for politically active Sikhs compared to the time of his 2003 hearing. As such, any changes were incremental rather than material.

Because Basra neither rehabilitated his credibility nor presented an independent claim, and because the country‑conditions evidence did not demonstrably worsen in a material way, the BIA reasonably concluded that the statutory exception did not apply.

C. Ineffective Assistance and Equitable Tolling

Even assuming IAC on the merits, equitable tolling requires due diligence both before and after the ineffective assistance was or should have been discovered (Rashid; Cekic; Iavorski). Basra asserted that prior counsel failed to file a brief to the BIA, failed to inform him of the BIA’s 2004 dismissal (foreclosing a timely petition for review), and failed to raise IAC in earlier reopening motions (2009 and 2010). The record defeated diligence:

• Basra knew in 2007—upon hiring new counsel—that the BIA had dismissed his appeal in 2004, yet he did not assert IAC tied to that dismissal until his third motion in 2011, a delay exceeding three years. Under Jian Hua Wang, even shorter unexplained delays can doom diligence.
• To the extent he argued that his appeal was dismissed for failure to brief, the footnote clarifies that the BIA did not dismiss for lack of a brief; indeed, counsel timely filed a petition for review that was later withdrawn. The opinion notes no effort by Basra in 2007 to ask counsel why the BIA dismissed the appeal or to otherwise investigate the dismissal’s basis, further undermining diligence.
• His contention that earlier counsel (in 2009 and 2010) should have raised IAC suffers the same diligence defect, since he knew of the 2004 dismissal by 2007 and could have pressed the issue then.

Because due diligence is independently required for tolling, the BIA properly denied equitable tolling regardless of any underlying attorney error.

D. Procedural Restraints: Supplemental Briefing and Record‑Only Review

The court denied Basra’s request to file a supplemental brief, finding no change in relevant law. Reinforcing 8 U.S.C. § 1252(b)(4)(A), the panel also emphasized that appellate review is confined to the existing administrative record; courts do not remand to consider extra‑record evidence where agency reopening procedures exist (Xiao Xing Ni).

3. Impact and Implications

While non‑precedential, the decision sends several clear signals to litigants and adjudicators:

• Adverse credibility is a formidable barrier to reopening on changed conditions: Applicants cannot merely repackage previously discredited narratives with updated country reports; they must either cure the credibility defects with material, corroborated explanations or pivot to a genuinely independent claim based on new facts not contaminated by the prior adverse finding.
• Materiality is comparative and time‑anchored: Country evidence must demonstrate a qualitative change since the original hearing. Continuities in repression or generalized deterioration (e.g., higher custodial deaths across the board) typically will not satisfy the exception unless tailored to the applicant’s protected ground and risk profile.
• Personalized affidavits face heightened skepticism post‑credibility denial: Without strong objective corroboration, new personal statements—even from relatives—may carry little persuasive weight.
• Equitable tolling demands prompt, documented action: Unexplained delays, even of several months (Jian Hua Wang), can defeat diligence. When new counsel learns of an adverse event (e.g., unnoticed BIA dismissal), IAC claims must be diligently developed and promptly filed.
• Strategic practice points for counsel: - Audit the case file immediately upon retention; seek FOIA records if necessary.
  - If prior credibility is a problem, focus on independent, verifiable developments (e.g., newly targeted activities, authenticated summonses, warrants, police reports, or medical/legal records) and explain how they were previously unavailable.
  - For IAC, contemporaneously document discovery dates, investigative steps, and reasons for any delay; comply meticulously with Matter of Lozada requirements when applicable (though not discussed in this order, they commonly apply to IAC claims before the BIA).

Complex Concepts Simplified

• Motion to reopen: A request to the BIA to revisit a closed immigration case based on new facts or evidence. Strictly limited in number (one) and time (90 days) unless specific exceptions apply.
• Changed country conditions exception: Allows late or successive motions for asylum claims if the applicant presents material evidence of changed conditions in the home country that was not previously available or discoverable and that bears on eligibility for relief.
• Adverse credibility determination: A prior finding that the applicant’s testimony was not credible. It taints later, similar claims and can justify discounting new personalized evidence unless credibility is rehabilitated or a new independent claim is presented.
• Materiality (in this context): The new evidence must be significant enough to likely change the outcome; merely cumulative or incremental changes do not suffice.
• Equitable tolling: A doctrine that pauses a filing deadline when fairness requires it (e.g., due to ineffective assistance), but only if the applicant exercises due diligence before and after discovering the problem.
• Due diligence: Reasonable, timely efforts to protect one’s rights. In immigration reopening, unexplained delays—even of a few months—can defeat tolling.
• Abuse of discretion: A deferential standard of review; the court will uphold the BIA unless its decision was arbitrary, irrational, or contrary to law.
• Substantial evidence: Factual findings are upheld if supported by reasonable, credible evidence in the record; the court does not reweigh evidence.
• Summary order: A non‑precedential disposition that resolves a case without a full published opinion; citable subject to Federal Rule of Appellate Procedure 32.1 and local rules.
• Record‑only review: Appellate courts decide petitions based on the existing administrative record; new evidence must be presented to the agency through reopening mechanisms.

Conclusion

The Second Circuit’s summary order in Basra v. Bondi underscores two enduring principles that govern motions to reopen in the wake of an adverse credibility finding: (1) the changed country conditions exception is narrow and demands either credibility rehabilitation or a genuinely independent claim supported by material, previously unavailable evidence; and (2) equitable tolling for ineffective assistance hinges on demonstrable, prompt diligence, often measured in months, not years.

Applying these principles, the court found no abuse of discretion in the BIA’s denial. Basra’s evidence did not cure the credibility concerns or show material worsening of conditions for politically active Sikhs since his 2003 hearing, and his multi‑year delay after learning of the 2004 BIA dismissal defeated due diligence. The decision, while non‑precedential, offers a clear roadmap for future litigants: successful reopening after an adverse credibility denial requires precise, independently verifiable evidence and swift, well‑documented action—particularly when asserting ineffective assistance of counsel.

Case Snapshot

• Court: U.S. Court of Appeals for the Second Circuit
• Panel: Judges Jacobs, Menashi, and Lee
• Date: October 15, 2025
• Disposition: Petition for review denied; all pending motions/applications denied; stays vacated
• Key Holdings: No material changed conditions shown in light of prior adverse credibility; personalized evidence discounted; equitable tolling denied for lack of due diligence; no supplementation/remand for extra‑record materials