Singh v. Holder, Jr. , 498 F. App'x 813 ( 2012 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 9, 2012
Elisabeth A. Shumaker
Clerk of Court
DARSHAN SINGH,
Petitioner,
v. Nos. 10-9535 & 11-9534
(Petitions for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before MATHESON, Circuit Judge, PORFILIO, Senior Circuit Judge, and
BALDOCK, Circuit Judge.
Darshan Singh, a native and citizen of India, petitions for review of decisions
of the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ)
denial of his application for asylum, restriction on removal, and protection under the
Convention Against Torture (CAT) (No. 10-9535); and denying in part his motion for
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these petitions for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
cases are therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
reconsideration (No. 11-9534). We have consolidated his petitions for review for
purposes of disposition. Exercising our jurisdiction under 8 U.S.C. § 1252, we deny
in part, and dismiss in part for lack of appellate jurisdiction.
BACKGROUND
On April 4, 2007, the Department of Homeland Security issued a Notice to
Appear to Mr. Singh, charging him with having entered the United States without
inspection “at or near BLAINE, [Washington] on or about August 22, 2002.” Admin.
R., No. 10-9535, at 854. Mr. Singh conceded the allegations in the Notice to Appear.
As he later explained, he used a passport under the name of Sukhdev Singh with his
own picture inserted to travel from India to Vancouver, Canada. From there, he
entered the United States by car.
On January 17, 2003, Mr. Singh filed an application for asylum, restriction on
removal, and relief under the Convention Against Torture (CAT).1 In this
application, he charged that he had been persecuted in India because of his Sikh
religion and his work on behalf of an independent Sikh homeland in India.
In July 2008, the IJ held a removal hearing at which Mr. Singh testified.
During the hearing, Mr. Singh stated that he was raised in the Sikh religion and grew
1
“Restriction on removal was referred to as ‘withholding of removal’ before
amendments to the INA made by the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA). . . . [F]or the sake of accuracy, and because this
claim was filed after IIRIRA’s effective date, we will use the term ‘restriction on
removal’ throughout this opinion.” Wiransane v. Ashcroft, 366 F.3d 889, 892 n.1
(10th Cir. 2004).
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up in Batala, India, where he owned an auto parts shop. At the time of the hearing,
his wife and one of his two children still lived in India.
His troubles with the Indian authorities began in August 1997, when a friend
of his brother-in-law came to stay at the Singh home in Batala. After the friend left,
the police arrived and accused Mr. Singh of being a terrorist and a supporter of
terrorism. They searched the house but found nothing. They then arrested Mr. Singh
and took him to a police station. There, they held him for a day and beat him with a
wooden stick and a leather belt, rolled a wooden stick over his legs, and threatened to
kill him. The police released him after his wife paid a bribe.
After his release, Mr. Singh’s wife and brother-in-law took him to Ravi
Hospital in Batala, where Dr. Ravinder Pal Singh treated him for ten days for severe
internal injuries. As part of his asylum application, Mr. Singh submitted a signed
statement from Dr. Singh on Ravi Hospital stationery. In the statement, Dr. Singh
stated that he treated Mr. Singh from August 19 to August 28, 1997, and noted that
“[h]e remained unconscious due to internal injuries.” Id. at 543.
Mr. Singh returned home and resumed his duties at the auto parts store. But
after a few days, the police began paying visits to his shop. During these visits, they
used abusive language toward him and threatened him. Mr. Singh decided to
relocate, so in November 1998, he and his family left Batala for Amritsar.
After relocating to Amritsar, in May 1999 Mr. Singh joined a group called the
Khalra Action Committee (KAC). The goal of the KAC was to collect affidavits to
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show that innocent people had been tortured or killed by the police. Soon Mr. Singh
began collecting affidavits for the KAC. He also contributed financially to its work.
In his asylum application, Mr. Singh also stated that in January 2001 he was
arrested in Amritsar after affidavits were found at his house, and he was taken to the
police station, where he was held for forty-eight hours and beaten. His wife again
secured his release by paying a bribe.
In December 2001 Mr. Singh gave a speech at a human rights celebration
organized by the KAC. In the speech, he advocated the creation of a separate state
for Sikhs in India, known as “Khalistan.” The next day, the police again came to his
house, but Mr. Singh was out of town. Not finding him at home, they arrested his
wife. They released his wife after prominent Sikhs promised (without actually
intending to do so) to ensure Mr. Singh’s appearance at the police station upon his
return. Mr. Singh did not return home; instead, he fled, first to New Delhi, then to
Canada and the United States. He testified that if he returned to India, the police
would kill him.
The IJ found that Mr. Singh’s asylum application should be denied because he
failed to establish by clear and convincing evidence that he had filed his application
within one year of his arrival in the United States. He noted that Mr. Singh
“provided no documentation to show his date of entry into the United States” and that
because his testimony was not credible, it alone was “not . . . sufficient to qualify as
clear and convincing evidence.” Id. at 308.
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Turning to the application for restriction on removal and CAT relief, the IJ
found Mr. Singh’s testimony in support of these forms of relief not credible, for two
reasons. First, in his initial written statement in support of his asylum application, he
did not mention being tortured or hospitalized after his 1997 arrest. The IJ viewed
this as evidence that “the testimony and the later statement regarding that incident
have been inflated.” Id. at 309.
Second, the supporting documents from KAC and Ravi Hospital that
Mr. Singh provided and vouched for at the hearing appeared to be counterfeit. The IJ
noted rebuttal testimony from Mr. Rouco, a Supervisory Special Agent from the
Department of Homeland Security, who called the telephone numbers on the
letterheads of the documents provided, but could not reach the purported authors of
either of the documents at those phone numbers. There was also evidence that Ravi
Hospital did “not exist in the location purported to be set forth” on its own stationery
used for the purported letter from Dr. Singh. Id. at 310. Moreover, the purported
letter from the KAC contained a misspelling of the word “committee” in its
letterhead.
Finally, the IJ determined that even if Mr. Singh’s testimony were deemed
credible, he had failed to show that he could not escape persecution by relocating to a
different part of India. He also failed to show that it was more likely than not that he
would be tortured by the Indian government or that he could not safely relocate
within that country to avoid torture.
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Mr. Singh appealed to the BIA, which affirmed the IJ’s decision in an opinion
authored by a single judge. The BIA noted the IJ’s conclusion that Mr. Singh failed
to prove that he filed his asylum application within a year of his arrival, and stated
incorrectly that he “has not appealed from this finding.” Id. at 223. It also found the
IJ’s adverse credibility finding, based on the fraudulent documents, well-supported
and affirmed the denial of his restriction and CAT claims. On reconsideration, the
BIA struck the statement in its previous decision that Mr. Singh had failed to appeal
the one-year finding. It nevertheless upheld the IJ’s finding that he failed to show by
clear and convincing evidence that his application was timely filed, and affirmed its
earlier decision in all other respects.
ANALYSIS
Mr. Singh raises three issues for our review. First, he contends that the BIA
erred in finding that he failed to establish that he met the one-year filing deadline for
his asylum application. Second, he argues that the BIA violated his right to due
process when it upheld the IJ’s adverse credibility finding. Finally, he complains that
the BIA committed reversible error by failing to assign its decision to a
three-member panel.
1. Asylum Claim
An alien who seeks asylum must demonstrate by clear and convincing
evidence that his application was filed within one year after his arrival in the United
States. 8 U.S.C. § 1158(a)(2)(B). The Immigration and Nationality Act further
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provides that “[n]o court shall have jurisdiction to review any determination of the
Attorney General” related to the timeliness of an asylum application.
Id. § 1158(a)(3).
The Act makes an exception to this jurisdictional bar for constitutional
questions and questions of law. See 8 U.S.C. § 1252(a)(2)(D). Petitioners relying on
the exception for constitutional questions must allege at least “a substantial
constitutional issue” in order for this court to retain jurisdiction. Morales Ventura v.
Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003).
Mr. Singh first contends that, notwithstanding the IJ and BIA’s conclusion to
the contrary, he met his burden of demonstrating the timeliness of his application by
clear and convincing evidence. This argument does not present a substantial
constitutional issue. “Recasting challenges to factual . . . determinations as due
process or other constitutional claims . . . is clearly insufficient to give this Court
jurisdiction under § 1252(a)(2)(D).” Arambula-Medina v. Holder, 572 F.3d 824, 828
(10th Cir. 2009) (internal quotation marks and citations omitted).
Mr. Singh also contends that the BIA’s selective and improper use of evidence
“deprived [him] of the right to fair hearing” on the timeliness issue. Pet. Br. at 14.
He details two instances in which he contends the BIA deprived him of due process.
First, he argues that the BIA improperly ignored the affidavit of Gurinder S. Randev
submitted in connection with his asylum application. Mr. Randev’s affidavit stated
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that “[o]n reaching California on Aug 22, 2002, [Mr. Singh] lived with me.” Admin.
R., No. 10-9535, at 542.
“[T]he BIA is not required to discuss every piece of evidence when it renders a
decision.” Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995). We
discern no substantial constitutional issue resulting from the BIA’s failure to
specifically mention the Randev affidavit, which only provided information about
when Mr. Singh “reach[ed] California,” not when he entered the United States.
Second, Mr. Singh argues that the BIA relied on “flawed and impermissible
testimony by the government witness, Anthony Rouco,” Pet. Br. at 14, an issue we
consider further, infra. Agent Rouco did not offer any testimony concerning whether
Mr. Singh met the one-year deadline. He only offered testimony that tended to
undermine Mr. Singh’s credibility on other issues. In any event, as will be seen, the
use of Agent Rouco’s testimony did not violate Mr. Singh’s due process rights.
Hence, its effect on his credibility concerning the timeliness question does not
present a substantial constitutional issue.
Mr. Singh has failed to present a substantial constitutional issue concerning the
timeliness of his asylum application. We therefore lack jurisdiction to review the
BIA’s decision that he failed to prove his application was timely filed.
2. Adverse Credibility Determination
“We review the [agency’s] factual findings for substantial evidence.”
Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir. 2009). Under this standard,
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“factual findings are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Id. (internal quotation marks omitted). We
review de novo questions of law and constitutional challenges. See Ferry v.
Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006). “We do not question credibility
findings that are substantially reasonable.” Ismaiel v. Mukasey, 516 F.3d 1198, 1205
(10th Cir. 2008) (internal quotation marks omitted). But in light of the potentially
dispositive nature of such findings, “specific, cogent reasons” must be given for
disbelieving the alien. Id.
During the IJ hearing, the government called a rebuttal witness, Anthony
Rouco, who appeared telephonically. Agent Rouco testified that the day before, at
the government’s attorney’s request, he had telephoned the numbers the
government’s attorney gave him for the KAC and Ravi Hospital. The number for the
KAC had been disconnected, and the number for the Ravi Hospital resulted in him
reaching “a cell phone number that belongs to a guy in India named Aman” who
“[d]id [not] know anything” about Dr. Singh or Ravi Hospital. Admin. R.,
No. 10-9535, at 464. The IJ and BIA relied on this testimony in determining that
Mr. Singh was not credible.
Mr. Singh’s counsel objected to Agent Rouco’s testimony because Agent
Rouco was not on the witness list provided to him by the government. The
government’s counsel responded that it was not required to disclose this witness
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because “it’s impeachment.” Id. at 437. Mr. Singh now argues that the use of Agent
Rouco’s testimony without prior notice to him violated his right to due process.
“Because aliens do not have a constitutional right to enter or remain in the
United States, the only protections afforded are the minimal procedural due process
rights for an opportunity to be heard at a meaningful time and in a meaningful
manner.” Arambula–Medina, 572 F.3d at 828 (internal quotation marks omitted).
Mr. Singh received the process due him here. He was permitted to cross-examine
Agent Rouco. Moreover, as the BIA noted, he was “not precluded from filing a
motion to remand or a timely motion to reopen, insofar as he wished to further
address and rebut the testimony and evidence provided.” Admin. R., No. 11-9534,
at 8.
In further support of his due process argument, Mr. Singh cites a section of the
Immigration Court Practice Manual, which reads as follows:
For individual calendar hearings involving non-detained aliens, filings
must be submitted at least fifteen (15) days in advance of the hearing.
This provision does not apply to exhibits or witnesses offered solely to
rebut and/or impeach.
Immigration Ct. Practice Man. Rule 3.1(b)(ii)(A) (emphasis added).
The BIA concluded that the exception in this rule applied because Agent
Rouco’s testimony was presented for impeachment purposes. This conclusion is
supported by substantial evidence. Even Mr. Singh admits that Mr. Rouco was
“brought in for impeachment.” Pet. Br. at 17. The Rule provides no basis for
reversal here.
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Finally, Mr. Singh argues that he was entitled to advance notice of Agent
Rouco’s testimony because Agent Rouco was offered as an expert witness rather than
solely a rebuttal or impeachment witness. Although the government’s counsel asked
Agent Rouco two general questions about his training as an investigator for the
Department of Homeland Security, see Admin. R., No. 10-9535 at 442, he made no
effort to qualify him as an expert witness and he did not ask him to express any
expert opinion. The BIA’s conclusion that Agent Rouco’s testimony was offered
solely for impeachment and not as expert testimony is supported by substantial
evidence.2
3. Review by Single-Judge Panel
Mr. Singh argues that his case should have been reviewed by a three-judge
panel of the BIA. He argues that three-judge review was appropriate because the IJ’s
decision either was “not in conformity with the law or with applicable precedents,”
8 C.F.R. § 1003.1(e)(6)(iii), or because it was “clearly erroneous factual[ly],” id.
2
Mr. Singh complains repeatedly, albeit in a cursory fashion, of “documentary”
evidence as well as “testimonial” evidence admitted against him without notice. See,
e.g., Pet. Br. at 10 (“The government also submitted eleventh hour documentary
evidence refuting the medical corroborative evidence of Mr. Singh’s medical
treatment as a result of his injuries.”). It is not until page twenty-six of his brief,
however, in his discussion of his “single-judge panel” issue, that he identifies any
specific piece of documentary evidence allegedly used improperly against him (a
website report from the www.SearchIndia.com website). Moreover, his argument on
page twenty-six involves the evidentiary foundation for the use of the website result,
and does not specifically target the lack of notice. To the extent it even qualifies for
appellate consideration, his due process argument about documentary evidence fails
for essentially the same reasons as his argument concerning Agent Rouco’s
testimony.
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§ 1003.1(e)(6)(v). He has failed to demonstrate that either of these circumstances
apply in this case, however, and so we reject this argument.
We DISMISS the petitions for review to the extent they challenge the BIA’s
findings concerning the timeliness of Mr. Singh’s asylum application. The petitions
for review are otherwise DENIED.
Entered for the Court
John C. Porfilio
Senior Circuit Judge
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