Singh v. Holder , 426 F. App'x 5 ( 2011 )

10-468-ag
Singh v. Holder
BIA
Straus, IJ
A075 320 097
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of June, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 AMRIK SINGH,
14 Petitioner,
15
16 v. 10-468-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Amrik Singh, pro se.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor,
27 Assistant Director; Saul Greenstein,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED in part and DENIED in part.
5 Petitioner Amrik Singh, a native and citizen of India,
6 seeks review of a January 14, 2010 order of the BIA,
7 affirming the March 27, 2008 decision of Immigration Judge
8 (“IJ”) Michael W. Straus, which denied his application for
9 adjustment of status. In re Amrik Singh, No. A075 320 097
10 (B.I.A. Jan. 14, 2010), aff’g No. A075 320 097 (Immigr. Ct.
11 Hartford Mar. 27, 2008). We assume the parties’ familiarity
12 with the underlying facts and procedural history of this
13 case.
14 Under the circumstances of this case, we have reviewed
15 both the IJ’s and the BIA’s opinions “for the sake of
16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
17 2008) (per curiam). The applicable standards of review are
18 well-established. See 8 U.S.C. § 1252(b)(4)(B)(2006);
19 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 As a threshold jurisdictional matter, under 8 U.S.C.
21 § 1252(a)(2)(B)(i), (D), we lack jurisdiction to review the
22 agency’s denial of adjustment of status except to the extent
23 that Singh raises constitutional claims or questions of law.
2
1 See Wallace v. Gonzales, 463 F.3d 135, 138 (2d Cir. 2006)
2 (per curiam); see also Xiao Ji Chen v. U.S. Dep’t of
3 Justice, 471 F.3d 315, 325 (2d Cir. 2006). In finding Singh
4 inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for having
5 procured his visa by fraud or willful misrepresentation, and
6 thus ineligible to adjust his status, the agency relied on
7 Singh’s testimony that his purpose in coming to the United
8 States was not to dance as a member of a dance troupe as
9 indicated in his visa application. Singh now attempts to
10 reconcile his testimony. Because his argument does not
11 raise a question of law or a constitutional claim, however,
12 we lack jurisdiction to review the argument under 8 U.S.C.
13 § 1252(a)(2)(B)(i), and we dismiss the petition to this
14 extent. See Wallace, 463 F.3d at 138.
15 Singh does raise a question of law when he argues that
16 the agency erred in placing the burden on him to show that
17 he was admissible, rather than requiring the government to
18 demonstrate that he was inadmissible. See Paese v. Hartford
19 Life & Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006)
20 (recognizing that “[t]he placement of the burden of proof is
21 a question of law”). Singh is correct that, here, the
22 government bore the initial burden of demonstrating that he
3
1 was removable. See Ibragimov v. Gonzales, 476 F.3d 125, 131
2 (2d Cir. 2007). However, because Singh conceded that he was
3 removable for overstaying the terms of his visa as charged
4 in the Notice to Appear, the government discharged its
5 burden of showing his removability. See Hoodho v. Holder,
6 558 F.3d 184, 191–92 (2d Cir. 2009). Having conceded his
7 removability, Singh bore the burden of demonstrating his
8 eligibility for adjustment of status and that he was not
9 inadmissible. See Aslam v. Mukasey, 537 F.3d 110, 115―17
10 (2d Cir. 2008) (per curiam).
11 Singh also argues that he met his burden of
12 demonstrating his admissibility by showing that he was
13 admitted. This argument fails, however, because an alien
14 may be “admitted” but still remain “inadmissible” within the
15 meaning of the statute. See Emorkah v. Mukasey, 523 F.3d
16 110, 118 (2d Cir. 2008).
17 Singh additionally raises a colorable constitutional
18 claim over which we have jurisdiction when he contends that
19 the IJ violated his right to due process by “acting as the
20 prosecutor” and sua sponte finding him inadmissible for
21 having procured his visa by fraud or willful
22 misrepresentation. See Wallace, 463 F.3d at 138. Although
4
1 an IJ must maintain impartiality, see, e.g., Islam v.
2 Gonzales, 469 F.3d 53, 55–56 (2d Cir. 2006), we have
3 recognized that the IJ’s role is to participate actively in
4 developing the record, see Qun Yang v. McElroy, 277 F.3d
5 158, 162 (2d Cir. 2002) (per curiam). Accordingly, even if
6 Singh is correct in his contention that the IJ found him
7 inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) without
8 prompting from government counsel, his right to due process
9 was not thereby violated, as he was provided a full and fair
10 opportunity to address his inadmissibility. See Burger v.
11 Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).
12 Finally, Singh contends that the IJ’s denial of his
13 asylum application was in error and that his case should be
14 remanded to the BIA for consideration of his asylum claim.
15 As the government argues, however, Singh, through his
16 counsel, withdrew his asylum claim in his August 2004 motion
17 to remand and never sought to reinstate it before the
18 agency. Accordingly, we decline to address Singh’s
19 arguments with respect to asylum. See Karaj v. Gonzales,
20 462 F.3d 113, 119 (2d Cir. 2006); Hoodho, 558 F.3d at 192
21 (“[A] party who voluntarily chose an attorney as his
22 representative in an action cannot avoid the consequences of
23 the acts or omissions of this freely selected agent.”
24 (internal quotation marks and alterations omitted)).
5
1 For the foregoing reasons, the petition for review is
2 DISMISSED in part and DENIED in part. As we have completed
3 our review, any stay of removal that the Court previously
4 granted in this petition is VACATED and any pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate
8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6