Narinder Singh v. Attorney General United States , 807 F.3d 547 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1152
_____________
NARINDER SINGH,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_______________
On Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A072-012-844)
Immigration Judge: Hon. Frederic Leeds
_______________
Argued
September 16, 2015
Before: FISHER, CHAGARES, and JORDAN, Circuit
Judges.
(Filed: November 4, 2015)
_______________
Nicholas J. Mundy [ARGUED]
16 Court Street
Suite 2901
Brooklyn, NY 11241
Counsel for Petitioner
Matt A. Crapo
Timothy Hayes
Brendan P. Hogan
Lindsay M. Murphy [ARGUED]
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Narinder Singh, a native and citizen of India, petitions
for review of a Board of Immigration Appeals (“BIA”)
decision dismissing his appeal from an order of an
Immigration Judge (“IJ”) concluding that he was both
removable and ineligible for cancellation of removal under 8
U.S.C. § 1229b(a) due to his lack of seven years of
continuous residence in the United States. We will deny the
petition.
2
I. BACKGROUND
After entering the United States, Singh was granted
asylum on July 1, 1993, and adjusted to lawful permanent
resident status on June 1, 1994. On September 14, 2000,
Singh was convicted in the United States District Court for
the Northern District of Florida of conspiracy to counterfeit
passports, counterfeiting and using visas, and mail fraud in
violation of 18 U.S.C. § 371. He was also convicted of
unlawful possession of forged, counterfeited, altered, and
falsely made nonimmigrant United States visas in violation of
18 U.S.C. § 1546.
Singh later departed the United States and re-entered,
as relevant here, on January 20, 2003.1 In late October 2009,
he applied for admission to the United States as a lawful
permanent resident. He was instead detained by Immigration
and Customs Enforcement on January 10, 2010. On
January 19, 2010, he was served with a notice of removal
charging him as an inadmissible arriving alien because he had
1
The government concedes that this entry was
“procedurally regular” but alleges that it was “not
substantively lawful.” (Government Supp. Br. at 12.) It
appears that Singh was admitted in error, as his conviction
should have rendered him inadmissible. See 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (alien convicted of crime involving
moral turpitude is inadmissible); 8 U.S.C.
§ 1101(a)(13)(C)(v) (lawful permanent resident alien must
seek admission if he has committed crime involving moral
turpitude).
3
committed a crime involving moral turpitude, namely his
2000 counterfeiting conviction. 2
After being served with his notice of removal, Singh
appeared for a master calendar hearing before the
2
The Notice to Appear stated:
The Service Alleges that you:
1. You are not a citizen or national of the
United States;
2. You are a native of INDIA and a citizen of
INDIA;
3. On June 1, 1994, you were accorded Lawful
Permanent Resident status of the United States.
4. On or about September 14, 2000, you were
convicted at the United States District Court, Northern
District of Florida for the offense of Conspiracy to
Counterfeit Passports; Counterfeit and Use Visas and
Commit Mail Fraud in violation of Title 18, United
States Code, Section 371 under case number 4:00cr32-
004(S).
5. On or about September 14, 2000, you were
convicted at the United States District Court, Northern
District of Florida for the offense of Unlawful
Possession of Forged, Counterfeited, Altered and
Falsely Made Non-Immigrant United States Visas in
violation of Title 18, United States Code, Section 1546
under case number 4:00cr32-004(S).
6. On or about October 30, 2009, you arrived at
Newark Liberty International Airport in Newark, New
Jersey, and applied for admission into the United
States as a Lawful Permanent Resident.
(AR at 517.)
4
Immigration Court in Newark, New Jersey. Through counsel,
he acknowledged proper service of the notice to appear,
admitted all of the factual allegations therein, and conceded
the sole charge of removability for his commission of a crime
involving moral turpitude. Singh subsequently filed an
application for cancellation of removal, and, through counsel,
“indicated that he would not be seeking any alternative forms
of relief.” (AR at 153.)
The IJ denied Singh’s application for cancellation of
removal, in an interlocutory order, on the basis that Singh had
not accrued the requisite seven years of continuous residence
in the United States to make him eligible for cancellation of
removal pursuant to 8 U.S.C. § 1229b(a). Thereafter, the IJ
held a hearing to determine whether Singh had any other form
of relief available to him. Singh sought no such relief and,
accordingly, the IJ issued a final decision on April 8, 2013,
incorporating in full its prior interlocutory order.
On December 17, 2014, the BIA affirmed the IJ’s
decision. This timely petition for review followed.
5
II. DISCUSSION 3
A. STANDARD OF REVIEW
“In reviewing the merits of Petitioner’s claims, this
Court reviews the agency’s conclusions of law de novo,
‘subject to established principles of deference.’” Mendez-
Reyes v. Att’y Gen., 428 F.3d 187, 191 (3d Cir. 2005)
(quoting Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004)).
These “principles of deference” include the deference owed
to administrative agencies pursuant to Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). See
Wang, 368 F.3d at 349. In general, the degree of deference
owed to a BIA decision varies based upon the decision’s
precedential value. See De Leon-Ochoa v. Att’y Gen., 622
F.3d 341, 348-51 (3d Cir. 2010). Here, the BIA decision was
a single-member, non-precedential opinion. See 8 C.F.R.
§ 1003.1(g). Accordingly, we defer to its legal conclusions
3
The BIA had jurisdiction under 8 C.F.R.
§ 1003.1(b)(3). We exercise jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(1). Although the jurisdictional statute strips us of
jurisdiction over “any judgment regarding the granting of
relief under section … 1229b,” 8 U.S.C. § 1252(a)(2)(B)(i),
we have interpreted this provision to apply only with respect
to discretionary aspects of the denial of cancellation of
removal. See Mendez-Moranchel v. Ashcroft, 338 F.3d 176,
178 (3d Cir. 2003). Satisfaction of the continuous residency
requirement is not such a discretionary decision and is thus
subject to our review. See Mendez-Reyes v. Att’y Gen., 428
F.3d 187, 189 (3d Cir. 2005); Okeke v. Gonzales, 407 F.3d
585, 588 n.4 (3d Cir. 2005).
6
only insofar as they have the power to persuade. See Mahn v.
Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014) (“At most, these
decisions are persuasive authority.”).4
B. SINGH’S ELIGIBILITY FOR CANCELLATION OF
REMOVAL
Singh is removable from the United States. His
counterfeiting conviction, as he correctly concedes, qualifies
as a “crime involving moral turpitude” that renders him
inadmissible, and thus removable, from the United States.
See 8 U.S.C. § 1182(a)(2)(A)(i)(I) (crime involving moral
turpitude renders alien inadmissible); 8 U.S.C.
§ 1227(a)(1)(A) (alien who was inadmissible at time of entry
is deportable). Crimes, like Singh’s, involving allegations of
dishonesty or fraud fall well within the recognized definition
of “crimes involving moral turpitude.” See De Leon-Reynoso
v. Ashcroft, 293 F.3d 633, 635-36 (3d Cir. 2002); see also In
re Serna, 20 I. & N. Dec. 579, 584 (BIA 1992) (“The offense
of possession of counterfeit obligations of the United States
4
We decide the petition “only on the administrative
record on which the order of removal is based,” 8 U.S.C.
§ 1252(b)(4)(A), and defer to the administrative findings of
fact as “conclusive[,] unless any reasonable adjudicator
would be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B). When the BIA issues its own decision on
the merits and not a summary affirmance, we review its
decision, not that of the IJ. Sheriff v. Att’y Gen., 587 F.3d
584, 588 (3d Cir. 2009). The BIA has a corresponding
responsibility to review the IJ’s findings of fact only for clear
error. 8 C.F.R. § 1003.1(d)(3)(i). Singh has not alleged that
either the IJ or the BIA erred in any of their findings of fact.
7
has also been held to involve moral turpitude since the statute
includes the intent to defraud … .”).
Having conceded removability, the sole relief that
Singh now seeks is cancellation of removal. “[T]he alien
shoulders the burden of showing that [he] is eligible for
cancellation of removal.” Pareja v. Att’y Gen., 615 F.3d 180,
185 (3d Cir. 2010). For a lawful permanent resident to be
eligible for cancellation of removal, he or she must satisfy
three requirements: (1) show lawful permanent resident status
for not less than five years; (2) demonstrate continuous
United States residency for seven years after having been
admitted in any status; and (3) establish that he has not been
convicted of an “aggravated felony.” 8 U.S.C. § 1229b(a).
The parties agree that Singh meets the first and third
requirements. Singh also rightly concedes that his period of
residence prior to the commission of his counterfeiting
offense does not satisfy the seven-year requirement. The sole
disagreement here concerns whether Singh’s post-2003 time
period – from the date of his re-entry on January 20, 2003 to
the service of his notice to appear on January 19, 2010 –
satisfies the seven-year requirement. 5
5
As these dates make apparent, it is arguable that
Singh fell one day short of satisfying the seven-year
requirement, regardless of the other issues in the case. Given
the unique closeness of the timing in Singh’s case, the
determination of timeliness depends upon how one counts a
one-year period for the purposes of eligibility for cancellation
of removal. Compare United States v. Hurst, 322 F.3d 1256,
1259-60 (10th Cir. 2003) (applying the “anniversary method,”
in which “the last day for instituting the action is the
anniversary date of the relevant act”), with Habibi v. Holder,
8
To be eligible for cancellation, the alien must have
“resided in the United States continuously for 7 years after
having been admitted in any status.” 8 U.S.C. § 1229b(a)(2).
The seven-year clock starts to run when the alien is
“admitted” to the United States. Such admission is defined as
“the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.” 8
U.S.C. § 1101(a)(13)(A). “The 7-year clock of § 1229b(a)(2)
thus begins with an alien’s lawful entry.” Holder v. Martinez
Gutierrez, 132 S. Ct. 2011, 2015 n.1 (2012) (emphasis in
original). When the continuity clock stops is governed by
another subsection of the cancellation statute, termed the
“stop-time rule.” This rule provides that continuous
residency periods end either “when the alien is served a
notice to appear under section 1229(a) of this title[;] or …
when the alien has committed an offense … that renders the
alien inadmissible … or removable … whichever is earliest.”
8 U.S.C § 1229b(d)(1).
673 F.3d 1082, 1087 (9th Cir. 2011) (describing the “calendar
method,” in which years are measured as “consecutive 365-
day period[s] beginning at any point” (internal quotation
marks omitted)). Here, unlike in the typical case, the choice
of method actually matters: under the anniversary method
Singh would fall one day short, and under the calendar
method he would have one day to spare. The only two cases
cited by the parties, and the only two cases of which we are
aware, relied upon the calendar method in the context of
measuring an alien’s period of physical presence in the
United States. See Minasyan v. Mukasey, 553 F.3d 1224 (9th
Cir. 2009); Lagandaon v. Ashcroft, 383 F.3d 983 (9th Cir.
2004). Because we deny Singh’s petition on other grounds,
we need not choose between the two approaches.
9
As Singh concedes, and as the BIA properly found, his
2000 counterfeiting conviction was a clock-stopping event.
Because of that conviction, both the IJ and BIA concluded
that Singh could not begin a new period of continuous
residence after his 2003 readmission. By their reasoning,
Singh’s commission of a crime involving moral turpitude not
only stopped the clock as to his preceding period of
residency, but permanently prevented the clock from ever re-
starting as to a later period of residency. Singh challenges
that conclusion.
In Okeke v. Gonzales, 407 F.3d 585 (3d Cir. 2005), we
recognized one situation in which the seven-year period could
potentially re-start after commission of a clock-stopping
crime. The alien in that case, a native and citizen of Nigeria,
entered the United States as a non-immigrant student in 1981,
returned home to Nigeria, and then returned to the United
States in 1983. Id. at 586. Upon re-entry, he was arrested for
possession of marijuana, to which he pled guilty and received
a sentence of five years’ probation. Id. He subsequently
departed the United States and was readmitted on a student
visa in 1984, and lived here without interruption thereafter.
Id. In 1997, he was charged with removability based on his
failure to maintain his student status, per the terms of his
student visa. Id. at 586-87. He sought cancellation of
removal. The BIA held, as it has here, that the commission of
a clock-stopping offense “is not simply interruptive of the
period of continuous physical presence, but is a terminating
event, after which no further continuous presence can accrue
for purposes of cancellation of removal.” Id. at 587.
We reversed. Although we emphasized that multiple
circuits had deferred to the BIA’s determination that the clock
10
generally cannot start anew, we distinguished those cases on
the basis that none “involved an individual who left the
United States and reentered.” Id. at 589. We cited the alien’s
re-entry as the “critical fact for restarting the clock,” id. at
590, and drew a bright line between those who remain in the
United States and those who re-enter after a clock-stopping
event, rendering a seemingly-broad holding in favor of those
who re-enter: “Where, as here, there is (lawful) reentry after a
clock-stopping event (i.e., the commission of a controlled
substance offense), the clock starts anew.” 6 Id. Despite that
language, we noted that the case then at hand – unlike Singh’s
– was “not about deporting an alien who had committed a
crime” because the notice to appear “made no reference to
Okeke’s alleged commission of the controlled substance
6
We would later criticize this reasoning in Nelson v.
Att’y Gen., 685 F.3d 318, 325 (3d Cir. 2012), noting that
“there is no sound logical justification for attaching such
significance to departure from the country.” That observation
rings true. Indeed, fact patterns like Singh’s and that in
Okeke (i.e., an alien who has committed a clock-stopping
offense and returned to the country through regular channels
and remained for an extended period) should not exist,
because the alien who re-enters the United States under such
circumstances is actually inadmissible. See supra n.1. As the
government admits, Singh did not sneak into the country; he
was let in. In Singh’s case, not only was his procedurally-
regular entry on January 20, 2003 substantively unlawful, but
it also occurred while he was serving a term of federal
supervised release (for his 2000 conviction). The legal
question presented – whether the continuity clock can re-start
– only needs answering because of the erroneous admission
of an inadmissible alien.
11
offense.” Id. According to the notice he received, Okeke was
removable, rather, because he had overstayed his student visa.
The notice to appear did not allege removability on the basis
of the crime that also stopped the clock, and the Okeke Court
“expresse[d] no opinion” as to what effect the crime’s
inclusion in the notice to appear would have had on its
decision. Id.
We addressed just such a circumstance in Nelson v.
Attorney General, 685 F.3d 318 (3d Cir. 2012). In that case,
a native of Jamaica was admitted to the United States as a
lawful permanent resident in November 1994. Id. at 319.
Less than five years later, in 1999, he pled guilty to marijuana
possession. Id. at 319-20. He later visited Canada for two
days, and was then allowed to re-enter the United States,
where he lived without interruption for the next eight years.
Thereafter, the Department of Homeland Security filed a
notice to appear alleging his removability on the basis of his
1999 conviction. He applied for cancellation of removal,
contending that Okeke controlled. Id. at 320. The BIA
disagreed, distinguishing Okeke on the basis of the factual
distinction that Okeke itself had identified – that Nelson had
been charged in the notice to appear with the very crime that
also terminated his continuous residence. Id. We affirmed,
holding that the BIA’s interpretation of the statute was
reasonable and therefore entitled to Chevron deference. Like
the BIA’s decision here, our opinion in Nelson emphasized
that the crime that terminated his period of continuous
residence was the basis for the alien’s removal in that case,
unlike in Okeke, in which the alien was removable because he
had overstayed his student visa. As the Okeke Court had
expressly drawn that distinction in its opinion, Nelson held
that the distinction would now be dispositive.
12
The case at bar is controlled by Nelson. Unlike the
alien in Okeke, and like the alien in Nelson, Singh was
charged in his notice to appear with being removable on the
basis of his clock-stopping offense. See supra n.2. Singh
does his best to analogize his case to Okeke – by citing his
repeated re-entry into the United States and his lack of
criminal record aside from his 2000 conviction – but neither
of those factual distinctions was cited in Okeke or Nelson as
any part of the basis of those decisions. It was the contents of
the notice to appear that formed the dispositive difference
between Nelson and Okeke. We are thus bound by Nelson,
and the BIA’s holding to that effect merits deference. 7
7
The BIA’s decision in Matter of Nelson, 25 I. & N.
Dec. 410 (BIA 2011), to which we then deferred in the
controlling Nelson case, is not without its flaws. For one,
Matter of Nelson is troubling insofar as a three-member panel
of the BIA imposed a stark limitation on a prior en banc BIA
decision, In re Cisneros-Gonzalez, 23 I. & N. Dec. 668 (BIA
2004), which had left open the possibility that there might be
other circumstances in which § 1229b might permit multiple
periods of continuous residence. See Matter of Nelson, 25 I.
& N. Dec. at 414 n.4. Even if the BIA panel was somehow
free to limit its own en banc decision, it was still bound by
the decision of this Court in Okeke, which broadly held that
lawful re-entry after a clock-stopping event re-starts the
seven-year clock. See Okeke, 407 F.3d at 591. As support
for its holding, Matter of Nelson relied primarily upon two
cases – In re Mendoza-Sandino, 22 I. & N. Dec. 1236 (BIA
2000) and Briseno-Flores v. Att’y Gen., 492 F.3d 226 (3d Cir.
2007) – neither of which involved an alien who left and re-
entered the United States, the critical fact underlying Okeke
13
Because Nelson controls, Singh’s continuous residency
clock stopped in 2000 when he committed his crime
involving moral turpitude and could never re-start. Thus, he
could not begin to accrue a period of continuous residency
when he re-entered the United States in 2003, and he is,
that was also present in Cisneros. See Matter of Nelson, 25 I.
& N. Dec. at 413.
Also, by making any clock re-start dependent on the
contents of a later notice to appear, Matter of Nelson hinges
such a re-start on an event that may happen only many years
after the re-entry at issue. Applying the logic of Nelson (as
we must), Singh’s clock did not re-start in 2003 only due to
the contents of a 2010 notice to appear. It would make more
sense – and be more predictable – if the re-starting of the
clock were instead contingent on events contemporaneous to
re-entry.
Finally, it seems formalistic to differentiate between
Okeke and Nelson on this basis when the aliens in both cases
agreed that they had been convicted of crimes that rendered
them removable. The only real difference between them is
that the alien in Okeke was actually in a legally worse
position, since he had a second basis for removal (overstaying
his student visa). Under the reasoning of Matter of Nelson, it
appears that the alien in Okeke only won because the typist of
his notice to appear did not catch, or care to include, his
conviction as a basis for removal. It is odd to condition the
satisfaction of the continuity rule – a rule designed to ensure
that an alien has a sufficiently strong connection to the United
States – on the diligence of the person writing the notice to
appear rather than on the actual actions of the alien in
question. It would behoove the BIA to provide some clarity
in this area.
14
accordingly, ineligible for cancellation of removal under 8
U.S.C. § 1229b(a)(2).
III. CONCLUSION
For the foregoing reasons, we will deny Singh’s
petition for review.
15