Singh v. Attorney General of the United States , 248 F. App'x 315 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-27-2007
Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1123
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-1123
___________
BALDEV SINGH
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
________________________
On Petition for Review from
the Board of Immigration Appeals
BIA No: A75-980-365
Immigration Judge: Annie S. Garcy
________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 14, 2007
Before: RENDELL, FUENTES, and CHAGARES
Circuit Judges.
(Opinion Filed: September 27, 2007)
___________
OPINION OF THE COURT
____________
FUENTES, Circuit Judge.
Baldev Singh, petitioner in this case, was initially granted asylum by an
immigration judge (IJ). On appeal, the Board of Immigration Appeals (BIA) remanded
the case to allow the parties to introduce further evidence regarding the veracity of
Singh’s claims. On remand, the IJ reversed her prior decision and denied the petition.
On appeal, the BIA affirmed. Singh now seeks review of these decisions. For the
reasons that follow, we will deny the petition.
I. Facts and Procedural History
Baldev Singh entered the United States from India in October 1997 as a visitor.
Singh filed for asylum and withholding of removal in April 1998. Singh stated that he
had been persecuted in India because of his participation in Akali Dal Mann, a political
party dedicated to the creation of an independent Sikh state. He claimed to have been
tortured by the police on several occasions. In support of this claim, Singh submitted
three letters, allegedly written by his doctors in India, purporting to document medical
treatment he received subsequent to being tortured.
On January 27, 1999, the IJ granted Singh asylum in an oral ruling based on his
claim that he had been tortured in India for his political activity. Subsequently, on May 4,
1999, the government sought to introduce a report which indicated that the doctor’s letters
submitted by Singh were fake. The IJ did not review the report and instructed the
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government to file the report with a motion to reopen the proceedings. On May 12, 1999,
the IJ, not having received the government’s motion to reopen, issued a decision, finding
that the government had abandoned its motion to reopen and noting that the IJ would be
unlikely to grant it given the eleventh hour nature of the request to consider additional
evidence. On May 24, 1999, the IJ finally received the motion to reopen and denied it.
The Department of Homeland Security appealed the IJ’s decision to the BIA. On
February 28, 2003, the BIA sustained the appeal and remanded the case to the IJ, noting
that the “evidence [in the report was] probative and its use fundamentally fair, and we
further find that it materially [a]ffects the Immigration Judge’s factual findings.” (Admin.
R. 237.)
On September 23, 2003, the IJ conducted additional hearings on remand. Singh
did not have any additional documentary evidence to present and Singh was unable to
testify as there was no translator present. Singh’s attorney represented that Singh was in
fact treated by the doctors whose letters were determined to be fake, that the letters had
been obtained for him once he had left India, and that he had believed them to be real
when he submitted them. The IJ, noting that Singh was on notice from May 1999 that the
veracity of those documents was in question, declined to allow Singh additional time to
submit new evidence to support his claim. However, the IJ provided Singh the
opportunity to file an affidavit before October 14, 2003, to provide any information that
he would have testified to in court. Singh did not avail himself of that opportunity.
On April 2, 2004, the IJ reversed her earlier decision and denied Singh’s petition,
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finding that Singh’s “reliability as a witness in support of his applications for relief has
been shattered by the unreliable and false documentation that he supplied.” (Admin. R.
35.) The IJ, unable to rely on Singh’s original testimony, found that Singh had done
nothing to rehabilitate his credibility,1 and, accordingly, denied his petition. On
December 20, 2005, the BIA adopted and affirmed the IJ’s decision. This appeal
followed.
II. Jurisdiction
The BIA’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b), 1003.38, and 1240.15,
granting it appellate jurisdiction over IJs’ decisions in removal proceedings. This Court
has jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252.
III. Standard of Review
Where, as here, the BIA summarily affirms the findings of the IJ, we review the
IJ's decision directly. Mudric v. Att’y Gen., 469 F.3d 94, 101 (3d Cir. 2006). We review
factual determinations under the substantial evidence standard, meaning we may not
disturb a finding “unless any reasonable adjudicator would be compelled to conclude to
the contrary.” Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting 8 U.S.C. §
1252(b)(4)(B)). We will review de novo whether Singh’s due process rights were
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Singh submitted a single piece of evidence in response to the report, a statement by
Nirmal Kumar that he did not initially recognize the letter when asked by the investigator
about it, but later found out that the letter was issued by his assistant. He also asserted
that he did treat Singh on the dates in question. As this statement was submitted four
years after the investigation into the veracity of the documents provided by Singh, the IJ
found it to be “too little, too late.” (Admin. R. 34.)
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violated. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003).
IV. Analysis
On appeal, Singh makes three arguments. First, Singh argues that he was denied
due process because the IJ did not evaluate the reliability and trustworthiness of the report
and because the IJ misconstrued the BIA’s decision as to preclude any challenges to the
report. Second, he complains that the IJ failed to make a credibility determination on
remand by simply accepting the report as true and failing to reweigh the evidence in his
file. Third, Singh complains that he was not permitted to testify, after which the IJ held
his failure to testify against him. Each of these arguments will be addressed in turn.
A.
Singh contends that the admission of the report violated his due process rights
because the report was not reliable or trustworthy, citing to Ezeagwuna v. Ashcroft, 325
F.3d at 404-405. Under Ezeagwuna, an individual’s due process rights are violated if
evidence considered by the BIA is unreliable or not trustworthy. Id. at 405. In
Ezeagwuna, we found that the petitioner’s due process right had been violated by the
introduction of a report indicating that she had falsified documents because it: 1) was
presented to petitioner’s counsel just “a few days before the final hearing,” 2) contained
“multiple hearsay of the most troubling kind,” as the writer of the report had not done the
investigation or even communicated directly with the investigator, and 3) contained
“absolutely no information about what the ‘investigation’ consisted of.” Id. at 406-408.
These concerns are not present in Singh’s case. First, though Singh was first notified of
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the report after his asylum petition had been granted, he had over four years before the
hearing on remand to gather evidence to show that the report was wrong. Second, in this
case, the report was written by the agent who performed the investigation. Finally, the
report included a page-long description of how the investigation was conducted.
Accordingly, Singh’s due process rights were not violated by the introduction of the
report.2
B.
Next, Singh argues that the IJ erred by not considering the comparative weight of
the report versus the rest of the evidence presented. The IJ indicated that it was:
not prepared to pick through other evidence given that [Singh] certainly
does nothing to convince the court that any other document that he supplied
is, in fact, more reliable than those already detected as fabrications. Put
simply, two fake documents is enough to justify this court’s decision . . . to
withdraw its earlier finding that [Singh] is credible.
(Admin. R. 35.) We discern no error in the IJ’s assessment. Given that Singh provided
the IJ with false evidence and did nothing to rehabilitate that evidence despite having
years to do so, the IJ was not required to individually determine the veracity of the rest of
the documents presented.
Moreover, Singh’s complaint that the IJ improperly relied on her intuition to
overturn her prior favorable credibility determination is simply a misstatement of the
2
Moreover, Singh’s argument that the IJ erred by construing the BIA’s decision
remanding the case as “deem[ing] the [report] material, reliable, and probative” fails.
(Admin. R. 34.) The BIA deemed the introduction of the report to be “fundamentally
fair.” The IJ properly relied on this decision to admit the report into evidence.
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record. The IJ did not rely on her intuition. Rather, in the April 2004 decision, she noted
that she had previously “expressed . . . an intuitive sense that [Singh] was fabricating his
story. Evidently, the court’s intuition turned out to be reliable.” (Admin. R. at 34
(citations omitted).)
C.
Singh complains that after he was not permitted to testify on remand because a
translator was not present, the IJ “seem[ed] to hold []his non-testimony against [him].”
(Pet’r Br. at 24.) This argument is not persuasive. The IJ provided Singh with the
opportunity to submit an affidavit to provide any information that he would have testified
to in court. Singh did not avail himself of this opportunity. The IJ properly referred to
his failure to “testify further in this case,” given that Singh did not provide the court with
an affidavit.
V. Conclusion
In sum, Singh’s due process rights were not violated and there was substantial
evidence to support the IJ’s decision. Accordingly, we will deny the petition.
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