Sarbjit Singh v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 17-1579 & 17-2852
SARBJIT SINGH,
Petitioner,
v.
JEFFERSON B. SESSIONS III,
Attorney General of the United States,
Respondent.
____________________
Petitions for Review of an Order of the
Board of Immigration Appeals.
No. A075-456-846
____________________
ARGUED JANUARY 3, 2018 — DECIDED JULY 26, 2018
____________________
Before EASTERBROOK and SYKES, Circuit Judges, and
REAGAN, District Judge. ∗
SYKES, Circuit Judge. Sarbjit Singh, an Indian citizen and
lawful permanent resident, faces removal from the United
∗ Of the Southern District of Illinois, sitting by designation.
2 Nos. 17-1579 & 17-2852
States for the second time. 1 He was first removed in 2006
based on a 2004 Indiana felony conviction for corrupt busi-
ness influence. IND. CODE § 35-45-6-2. Singh reentered the
country in 2010 to pursue postconviction relief in Indiana.
Three weeks later a state judge vacated the conviction and
accepted his guilty plea to the crime of deception (a misde-
meanor) in its stead. Id. § 35-43-5-3. Singh thereafter asked
the Board of Immigration Appeals to reopen and reconsider
the removal order. The Board granted the motion and
remanded the case to an immigration judge.
A second round of removal proceedings ensued. The
government initially conceded that the deception offense did
not support removal and sought Singh’s removal on other
grounds. It later changed course and issued a new charge
alleging that Singh was removable based on the deception
conviction, which it argued was “a crime involving moral
turpitude … for which a sentence of one year or longer may
be imposed.” 8 U.S.C. § 1227(a)(2)(A)(i). Singh responded
that the government’s initial concession was binding and,
regardless, deception is not a removable offense because it is
not punishable by a sentence of “one year or longer.”
The immigration judge entered a new removal order,
reasoning that the government’s concession was not binding
because the Department of Homeland Security has express
regulatory authority to lodge new or additional charges in
removal proceedings “[a]t any time.” See 8 C.F.R. §§ 1003.30,
1240.10(e). And because the deception offense carries a
1 The petitioner’s first name is spelled “Sarabjit” in recent filings before
the agency and this court. We use “Sarbjit” to remain consistent with the
Board’s orders.
Nos. 17-1579 & 17-2852 3
possible sentence of “not more than one (1) year,” IND. CODE
§ 35-50-3-2, the judge held that it qualifies as a crime for
which a sentence of “one year or longer may be imposed.”
The Board affirmed the removal order.
Meanwhile, Singh went back to state court and entered
into an agreement with the prosecutor to vacate the decep-
tion conviction in exchange for a guilty plea to a misde-
meanor offense of dealing in drug paraphernalia. The state
judge accepted the deal, and Singh returned to the Board
with a motion to reopen and reconsider the second removal
order. Like before, he notified the Board that the state court
had vacated the conviction that served as the predicate for
his removal. This time the Board denied the motion. To
warrant reopening, Singh had the burden to show that his
conviction was vacated based on a substantive or procedural
defect in the underlying criminal proceedings; a conviction
vacated for other reasons—e.g., rehabilitation or immigra-
tion hardship—remains valid for immigration purposes. See
In re Chavez-Martinez, 24 I. & N. Dec. 272, 274 (BIA 2007). The
court record clearly showed that the vacatur was based on a
plea agreement, not a substantive or procedural defect in the
underlying conviction, so the Board held that Singh had not
carried his burden.
Singh seeks review of both orders, arguing first that the
Board abused its discretion in refusing to reopen his case
based on the vacatur of the deception conviction. In the
alternative he argues that deception does not carry a possible
sentence of “one year or longer” and that the government’s
concession to that effect is binding. These arguments are
meritless, so we deny both petitions for review.
4 Nos. 17-1579 & 17-2852
I. Background
Singh entered the United States in 1993 and was immedi-
ately placed in exclusion proceedings. He applied for asy-
lum and withholding of removal, claiming that he faced
persecution on account of his religion. An immigration judge
denied the applications and on December 1, 1995, issued an
exclusion order. Singh appealed to the Board of Immigration
Appeals, but before the Board ruled, he married a
U.S. citizen and filed for an adjustment of status and waiver
of inadmissibility. On July 21, 2000, the Immigration and
Naturalization Service approved the petitions and granted
Singh permanent residency.
Three years later Singh was arrested in Indiana and
charged with corrupt business influence, fraud, deception,
dealing in drug paraphernalia, and maintaining a common
nuisance. In 2004 he pleaded guilty to corrupt business
influence, a Class C felony under Indiana law, § 35-45-6-2,
and the other charges were dropped.
The Department of Homeland Security issued a Notice to
Appear charging Singh with four grounds of removability.
An immigration judge found him removable on two of those
grounds: (1) he was convicted of an aggravated felony
related to racketeering, 8 U.S.C. § 1227(a)(2)(A)(iii); and
(2) within five years of admission, he was convicted of a
crime involving moral turpitude with a possible sentence of
one year or longer, § 1227(a)(2)(A)(i). The Board affirmed,
and Singh was removed on September 21, 2006.
On June 27, 2010, Singh was readmitted on a visitor visa
and a nonimmigrant waiver of inadmissibility so he could
pursue postconviction relief in Indiana state court. The
Nos. 17-1579 & 17-2852 5
Elkhart Superior Court agreed to vacate his felony convic-
tion for corrupt business influence. In its place the judge
accepted Singh’s guilty plea to the crime of deception, a
misdemeanor punishable by imprisonment “for a fixed term
of not more than one (1) year.” § 35-50-3-2. Because Singh’s
removal order was predicated on a now vacated conviction,
he moved the Board to reopen and reconsider his case. The
Board granted the motion and remanded the case to the
immigration court.
An immigration judge presided over three years of re-
newed proceedings as Singh attempted to regain his status
as a lawful permanent resident. At a hearing in March 2014,
the government lodged new charges of removability alleging
that Singh had fraudulently procured readmission, 8 U.S.C.
§ 1227(a)(1)(A), and overstayed his nonimmigrant visa, id.§ 1227(a)(1)(B). The government also withdrew the previous
charge of removability stemming from Singh’s conviction for
corrupt business influence. In doing so the government
erroneously conceded that the moral-turpitude provision no
longer applied because the substituted conviction for decep-
tion was not a crime punishable by a sentence “for one year
or longer.” § 1227(a)(2)(A)(i).
Nearly a year later, the government changed its position
and issued a new charge of removability based on the decep-
tion conviction. Additional rounds of briefing and hearings
followed. On November 24, 2015, the immigration judge
found Singh removable under the moral-turpitude provision
based on the deception conviction.
Singh appealed to the Board, arguing that (1) the gov-
ernment’s concession regarding the deception offense should
be treated as a binding admission, and (2) deception is not a
6 Nos. 17-1579 & 17-2852
crime for which a sentence of “one year or longer” may be
imposed. The Board rejected these arguments and affirmed.
First, the Board explained that the government’s mistaken
concession was not binding because the Department of
Homeland Security has regulatory authority to lodge new or
additional charges in removal proceedings “[a]t any time.”
8 C.F.R. §§ 1003.30, 1240.10(e). Second, the Board held that
because the Indiana deception offense is punishable by a
term of “not more than one (1) year,” § 35-50-3-2, it qualifies
as a crime for which a sentence of “one year or longer” may
be imposed. The Board entered this new final order on
February 17, 2017.
Before the Board issued its ruling, however, Singh re-
turned to state court and negotiated an agreement with the
prosecutor to vacate the deception conviction in exchange
for a guilty plea to a different misdemeanor charge. The
judge approved the deal, vacated the conviction “[b]y
agreement of the parties,” and accepted Singh’s guilty plea
to dealing in drug paraphernalia. IND. CODE § 35-48-4-8.5.
Singh waited until March 17—a month after the Board issued
its final decision—to notify the Board of this development.
He then moved a second time to reopen and reconsider his
case, arguing that the now-vacated deception conviction
could no longer serve as the basis for his removal.
This second effort to reopen the case was unsuccessful.
Under Board precedent, an alien seeking to reopen a final
order of removal on the basis of a vacated conviction must
prove that the conviction was vacated because of a substan-
tive or procedural defect. See Chavez-Martinez, 24 I. & N. Dec.
at 274. The records Singh submitted with his motion showed
that the state court vacated the conviction “by agreement of
Nos. 17-1579 & 17-2852 7
the parties,” not because of a defect in the underlying convic-
tion. As such, the Board held that Singh did not carry his
burden under Chavez-Martinez and declined to reopen the
case.
II. Discussion
Singh seeks review of both the final order of removal and
the denial of his motion to reopen. Our review of the latter is
deferential. Relief is warranted only if the Board abused its
discretion—that is, if its decision to deny the motion to
reopen “was made without a rational explanation, inexplica-
bly departed from established policies, or rested on an
impermissible basis such as invidious discrimination against
a particular race or group.” Victor v. Holder, 616 F.3d 705, 708
(7th Cir. 2010) (internal quotation marks omitted). Singh’s
challenge to the removal order raises two legal questions, so
our review is de novo. Alvarado-Fonseca v. Holder, 631 F.3d
385, 389 (7th Cir. 2011).
A. Motion to Reopen
An alien who seeks to reopen a final order of removal has
the “heavy burden” to establish the existence of new or
previously unavailable evidence that would likely alter the
result. INS v. Abudu, 485 U.S. 94, 110 (1988). Singh argues
that he presented such evidence—namely, court filings
showing that his conviction for deception, which formed the
basis of the second removal order, was vacated after the
Board’s decision.
It’s not enough, however, for Singh to show that the con-
viction was vacated. He must also show why it was vacated.
If the state court vacated Singh’s conviction “solely on the
basis of immigration hardships or rehabilitation, rather than
8 Nos. 17-1579 & 17-2852
on the basis of a substantive or procedural defect in the
underlying criminal proceedings, the conviction … will
continue to serve as a valid factual predicate for a charge of
removability despite its vacatur.” Chavez-Martinez, 24 I. & N.
Dec. at 273; see also In re Pickering, 23 I. & N. Dec. 621, 624
(BIA 2003), rev’d on other grounds, 465 F.3d 263 (6th Cir. 2006)
(“If … a court vacates a conviction for reasons unrelated to
the merits of the underlying criminal proceedings, the [alien]
remains ‘convicted’ for immigration purposes.”). The Board
has held that the alien—not the government—has the bur-
den to show that the conviction was vacated based on an
underlying substantive or procedural defect and not for
immigration or other purposes. Chavez-Martinez, 24 I. & N.
Dec. at 274.
We have not yet addressed Chavez-Martinez’s allocation of
the burden on a motion to reopen based on a vacated convic-
tion. But Singh did not challenge the burden of proof before
the Board and did not even cite Chavez-Martinez in his brief
in this court. As the government notes, his failure to present
the issue to either the Board or us means that any challenge
to Chavez-Martinez is both unexhausted and waived.
Chavarria-Reyes v. Lynch, 845 F.3d 275, 279 (7th Cir. 2016)
(explaining exhaustion); Haichun Liu v. Holder, 692 F.3d 848,
851 (7th Cir. 2012) (explaining waiver). Given these proce-
dural impediments, this is not a proper case for us to weigh
in. 2
2 There is a circuit split on the question of who bears the burden to show
the reason for the vacatur. Compare Rumierz v. Gonzales, 456 F.3d 31, 37–39
(1st Cir. 2006) (requiring the alien seeking reopening to show why his
conviction was vacated), with Nath v. Gonzales, 467 F.3d 1185, 1188–89
(9th Cir. 2006) (reaching the opposite conclusion).
Nos. 17-1579 & 17-2852 9
Singh argues instead that he presented enough evidence
to warrant reopening his case. He submitted the following
documents to the Board: (1) the Indiana court order vacating
his deception conviction; (2) various court filings and orders
related to his new drug-paraphernalia conviction; and (3) a
copy of the Indiana Rules of Post-Conviction Remedies. The
court record plainly shows that Singh’s deception conviction
was vacated. Singh relies on the Indiana Rules for the propo-
sition that an application for postconviction relief must be
based on the merits of the underlying conviction.
But the deception conviction wasn’t vacated as a result of
a postconviction motion. Rather, the court record establishes
that the conviction was vacated as a result of a plea agree-
ment between Singh and the state prosecutor. More specifi-
cally, on October 24, 2016, Singh and the prosecutor entered
into a written agreement asking the court to vacate the
deception conviction and accept Singh’s guilty plea to the
drug-paraphernalia charge in its place. The judge approved
the plea deal the same day, vacating the deception conviction
“by agreement of the parties” and accepting Singh’s guilty
plea to the paraphernalia offense. On this record it’s no
wonder the Board held that Singh had not met his burden
under Chavez-Martinez. No evidence shows that the vacatur
was based on a substantive or procedural defect in the
conviction. The Board did not abuse its discretion in denying
Singh’s motion to reopen.
B. Removal Order
The Board classified the Indiana misdemeanor offense of
deception as “a crime involving moral turpitude … for
which a sentence of one year or longer may be imposed,” a
predicate for removal. § 1227(a)(2)(A)(i). Singh concedes that
10 Nos. 17-1579 & 17-2852
deception is a crime involving moral turpitude. He disputes
only the Board’s conclusion that it is a crime “for which a
sentence of one year or longer may be imposed.”
The statutory phrase “one year or longer” plainly en-
compasses either a sentence of one year or a sentence of
longer than one year. See Dominguez-Herrera v. Sessions,
850 F.3d 411, 419 (8th Cir. 2017) (holding that a sentence that
“shall not exceed one year” is a sentence that falls within the
meaning of the phrase “one year or more”); Ceron v. Holder,
747 F.3d 773, 777 (9th Cir. 2014) (holding that a sentence “not
exceeding one year” is a sentence that likewise falls within
the meaning of the phrase “one year or longer”). Indiana’s
deception offense is punishable by a sentence of “not more
than one (1) year,” § 35-50-3-2, so the crime falls squarely
within the statutory language.
Singh responds that the phrase “one year or longer” is
ambiguous. For support he relies on two unpublished
decisions of the Board interpreting the phrase in different
ways. See In re Adeyinka, 2011 WL 1792662, at *2 (BIA Apr. 15,
2011) (holding that only a sentence of “longer than 1 year”
qualifies as “one year or longer”); In re Chavez-Gonzalez,
2010 Immig. Rptr. LEXIS 4234, at *3 (BIA Aug. 30, 2010)
(holding that a potential sentence of one year qualifies as
“one year or longer”). He also traces the legislative history of
the moral-turpitude provision, arguing that Congress in-
tended it to include only felony crimes. Based on these
supposed ambiguities, Singh asks us to apply the Rule of
Lenity. See, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004).
Ambiguity cannot be created where none exists. Statuto-
ry words and phrases are given their ordinary meaning, see
Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014), and when
Nos. 17-1579 & 17-2852 11
the meaning of the statutory text is clear, we do not
“[v]entur[e] into legislative history,” In re Bronk, 775 F.3d 871,
876 (7th Cir. 2015). Moreover, two thinly reasoned, un-
published Board decisions cannot obfuscate this clear statu-
tory text.
Singh’s backup argument is that the government is
bound by its initial concession that deception does not carry
a sentence of “one year or longer.” He analogizes this to a
tactical concession by an immigration attorney on behalf of
his client. See, e.g., Selimi v. INS, 312 F.3d 854, 860 (7th Cir.
2002); In re Velasquez, 19 I. & N. Dec. 377, 382 (BIA 1986). The
analogy is inapt. The Department of Homeland Security has
express regulatory authority to lodge new or additional
charges or factual allegations “[a]t any time” during removal
proceedings. See 8 C.F.R. §§ 1003.30, 1240.10(e). Here the
government did exactly what the regulation allows: it added
new factual allegations and a new charge of removability
while Singh’s proceedings were ongoing.
Singh also relies on Gordon v. INS, 36 F.3d 249 (2d Cir.
1994), and Rarogal v. INS, 42 F.3d 570 (9th Cir. 1994), but
neither case advances his argument. In Gordon the court
required the government to adhere to its agreement not to
deport an alien until after a related case was decided. 36 F.3d
at 251. In Rarogal the court determined that the immigration
judge had abused his discretion when he ordered the re-
moval of an alien when the government had conceded that
he was entitled to relief. 42 F.3d at 572–73. Importantly, the
government did not change its position, lodge new charges,
or otherwise argue for removal after making the concession.
These cases do not restrict the government’s broad regulato-
12 Nos. 17-1579 & 17-2852
ry authority to file new or additional charges in removal
proceedings.
Finally, Singh maintains that the government’s authority
to file new charges in removal proceedings is not so broad as
to allow it “to lodge the exact same charges or allegations
repeatedly.” He emphasizes what he sees as the inequity of
allowing the government to file a new charge against him
years after his case was reopened. We see no unfairness here.
First, the regulation places no limitation on the government’s
authority to lodge previously withdrawn charges. And the
government’s use of its charging authority did not produce
any case-specific unfairness. Singh was not prejudiced by the
delay; to the contrary, in accordance with 8 C.F.R.
§ 1240.10(e), the immigration judge gave him a reasonable
continuance to respond to the newly alleged ground of
removability. The legal issue was fully and fairly aired and
correctly decided.
The petitions for review therefore are
DENIED.