Singh, Uday P. v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2119 & 04-2485
UDAY P. SINGH,
Petitioner,
v.
ALBERTO GONZALES, United States
Attorney General,1
Respondent.
____________
Petitions for Review of an Order of
the Board of Immigration Appeals.
No. A73-010-867
____________
ARGUED DECEMBER 7, 2004—DECIDED APRIL 15, 2005
____________
Before BAUER, MANION, and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. Uday P. Singh, a native and citizen
of India, petitions for review of the Board of Immigration
Appeals’ (the “Board”) denial of his motion to reopen and
remand for adjustment of status and his motion for recon-
sideration. Singh sought the adjustment of status pursuant
to an approved visa petition filed by his wife, whom he
1
Pursuant to FED. R. APP. P. 43(c), we have substituted Alberto
Gonzales for John Ashcroft as the named respondent.
2 Nos. 04-2119 & 04-2485
married while removal proceedings were pending against
him. For the reasons that follow, we deny Singh’s petitions.
I. Background
Singh entered the United States in September 1991 as a
non-immigrant business visitor with authorization to
remain in the country for six months. Singh overstayed his
visa and applied for adjustment of status based on marriage
in 1994. The Immigration and Naturalization Service
(“INS”) denied the application, explaining its decision as
follows:
On July 15, 1991, [Singh] filed an application for a non-
immigrant visa at the United States Consul at New
Delhi, India. At that time, [Singh] gave sworn tes-
timony, before a Consular Officer, that [he was] married
and coming to New York City on business. Based on
[Singh’s] testimony [he] was issued a non-immigrant
visa, which [he] used to enter the United States on
September 27, 1991. On April 26, 1994, [Singh] filed an
application for adjustment of status to that of lawful
permanent resident, based on [his] marriage to a
United States citizen. [Singh] was interviewed on [his]
application and testified, before a Service Officer, that
[his] marriage to Keysa Hines was [his] first marriage.
[He] also testified that [he] resided with Keysa at his
home located at 3331 W. Flournoy in Chicago. The
Service conducted an investigation of the bona fides of
[Singh’s] marital relationship and determined that [he]
did not reside with Keysa Hines. Based on the investi-
gation, the petition which Keysa Hines had filed on [his]
behalf was denied. Suppression of the facts that [Singh
was] previously married in India and that [Singh was]
not residing with the petitioner, Keysa Hines, consti-
tutes a wilful misrepresentation in violation of Section
212(a)(6)(C) [of the] INA.
Nos. 04-2119 & 04-2485 3
A. 6-7. In its Notice of Intent to Deny Petition for Alien
Relative letter to Keysa Hines, the INS detailed its inves-
tigation of the Singh/Hines marriage, which included inter-
views of Singh’s family members and other residents of
3331 W. Flournoy. The letter stated, “[Y]our marriage to
Uday P. Singh is a sham. You entered into the marriage
in order to procure an immigrant visa for your husband.
Therefore, it is the intention of this office to deny your
petition.” A.R. 242-43.2
The INS commenced removal proceedings against Singh
in February 1998. Singh conceded removability and sought
relief in the form of asylum, withholding of removal, and
protection under the Convention Against Torture. An immi-
gration judge (“IJ”) ruled against Singh on all counts and
denied him voluntary departure due to his misrepresenta-
tion about his marital status on his 1991 visa application.
Singh appealed to the Board.
Subsequent to the IJ’s ruling but prior to the Board is-
suing a decision on appeal, Singh married Andreah Singh,
a United States citizen, and the INS approved a marital
visa petition (Form I-130) filed by Singh’s wife on his behalf.
Singh filed a motion to reopen and remand in order to apply
for adjustment of status (Form I-485) based on his marriage.
The Board dismissed his appeal and denied his motion to
reopen and remand. Singh filed a motion to reconsider,
2
Singh argues that the Board erred in considering the evidence
about the bona fides of his marriage to Hines because it is inad-
missible hearsay. However, “[c]onventional rules of evidence do
not apply in immigration proceedings, which are governed only by
the looser standard of due process of law.” Olowo v. Ashcroft, 368
F.3d 692, 699 (7th Cir. 2004) (citation omitted). Singh does not
challenge the evidence on due process grounds, and we do not
think that the Board’s use of the evidence violated Singh’s due
process rights. Like the Board, we view the evidence as probative
and will consider it.
4 Nos. 04-2119 & 04-2485
which the Board denied. Singh appeals both the motion to
reopen and the motion to reconsider.
II. Discussion
A. Jurisdiction
We begin with the INS’ contention that 8 U.S.C.
§ 1252(a)(2)(B)(ii) deprives us of jurisdiction to review the
Board’s denial of Singh’s motion to reopen. Section 1252(a)(2)
(B)(ii) bars judicial review of “any . . . decision or action of
the Attorney General the authority for which is specified
under this subchapter to be in the discretion of the Attorney
General . . . .” According to the INS, rulings on motions to
reopen fall within the ambit of the § 1252(a)(2) (B)(ii)
jurisdictional bar because they are discretionary decisions
of the Attorney General, the authority for which is specified
under the referenced subchapter. We disagree.
Before 1996, the authority for motions to reopen derived
solely from the regulations. Congress codified the motion to
reopen process in 1996 in 8 U.S.C. § 1229a(c)(6), a provision
within the subchapter referred to in the jurisdiction-
stripping provision. However, the statutory language only
describes the contents of motions to reopen and the filing
deadlines. Conspicuously absent is any specific language
entrusting the decision on a motion to reopen to “the dis-
cretion of the Attorney General.” Moreover, a subsection of
§ 1252, the section that also contains the jurisdiction-strip-
ping provision, provides that when a petitioner appeals a
motion to reopen or reconsider an order, that appeal should
be consolidated with the appeal of the underlying order.
8 U.S.C. § 1252(b)(6). That provision would be unnecessary
if § 1252(a)(2)(B)(ii) deprived us of jurisdiction in the first
place. See Stone v. INS, 514 U.S. 386, 397, 115 S. Ct. 1537,
131 L. Ed. 2d 465 (1995) (noting that courts must construe
statutes to give effect, if possible, to every provision). Con-
sequently, we join the two other circuit courts that have
Nos. 04-2119 & 04-2485 5
considered this issue, Medina-Morales v. Ashcroft, 371 F.3d
520 (9th Cir. 2004); Infanzon v. Ashcroft, 386 F.3d 1359
(10th Cir. 2004), and conclude that we have jurisdiction to
review the Board’s denial of Singh’s motion to reopen.
B. Standard of Review
We review the Board’s decision on a motion to reopen or
a motion to reconsider under the abuse of discretion stand-
ard. Wijeratne v. INS, 961 F.2d 1344, 1348 (7th Cir. 1992).
Under this deferential standard, we uphold the Board’s
ruling “unless it was made without a rational explanation,
inexplicably departed from established policies, or rested on
an impermissible basis such as invidious discrimination
against a race or particular group.” Achacoso-Sanchez v.
INS, 779 F.2d 1260,1265 (7th Cir. 1985). The factual find-
ings underlying the Board’s decision must be supported by
substantial evidence. Ghaly v. INS, 48 F.3d 1426, 1431 (7th
Cir. 1995). Substantial evidence is evidence a reasonable
mind would find adequate to support a conclusion. Id.
C. Order Denying Motion to Reopen
The Board premised its denial of Singh’s motion to reopen
for adjustment of status on the INS’ opposition to his
motion, his misrepresentation about his marital status on his
1991 application, and the evidence of his sham marriage in
1994. Singh attacks the Board’s findings about the misrep-
resentation about his marital status and the sham marriage
as unsupported by substantial evidence. Singh emphasizes
that the “married” and “single” categories are adjacent to
each other on the visa application form, and maintains that
he made a mistake when he checked the “married” category.
We are not persuaded by Singh’s argument. When Singh
checked the “married” box in 1991, he was attempting to
convince a United States consulate officer in India that he
6 Nos. 04-2119 & 04-2485
would not overstay a business visa if he were granted one.
Thus, his asserted mistake would have been a convenient
one because it tied him to India and may have influenced
the officer’s decision to grant the visa. In light of that pos-
sible motivation and Singh’s subsequent admission that he
was not married at that time, it was surely reasonable for
the Board to conclude that Singh’s action was intentional
and fraudulent. The Board’s finding about his sham marriage
in 1994, which we discuss in greater detail below, was also
reasonable and provided the Board with additional support
for denying Singh’s motion to reopen. Thus, we conclude
that the Board’s denial of Singh’s motion to reopen was not
an abuse of discretion.
D. Order Denying Motion to Reconsider
The Board denied Singh’s motion to reconsider its ruling
on the motion to reopen in a one-paragraph order. Citing
Matter of Velarde, 23 I.&N. Dec. 253 (BIA 2002), the Board
observed that Singh’s motion to reopen and remand could
only be granted in favor of a petitioner in Singh’s circum-
stances if it was unopposed by the INS. Because the INS
submitted a brief in opposition to Singh’s motion, the Board
denied the motion to reconsider. The Board’s reliance on
Velarde was erroneous. Velarde modified a prior opinion
regarding decisions on motions to reopen for adjustment of
status based on unadjudicated Form I-130 visa petitions,
laying out five factors to be considered when confronted
with such a situation. The instant case, on the other hand,
involves a petitioner in removal proceedings with an ap-
proved Form I-130 visa petition, which constitutes “primary
evidence” of a bona-fide marriage. 8 C.F.R. § 245.1(c)(9)(v).
Thus, Velarde is inapplicable to Singh, and we must deter-
mine if the Board’s error was harmless. Keys v. Barnhart,
347 F.3d 990, 994-95 (7th Cir. 2003) (noting that harmless
error doctrine applies on review of administrative decisions).
Nos. 04-2119 & 04-2485 7
We conclude that there is no point in remanding for
further proceedings because the decision on remand is a
foregone conclusion. Adjustment of status turns on two is-
sues: (1) eligibility and (2) whether the application merits
a favorable exercise of discretion. 8 U.S.C. § 1255(a).3 The
main hurdle for Singh with regard to eligibility is that he
married Andreah Singh and applied for adjustment of
status while removal proceedings were pending against
him.4 Under 8 U.S.C. § 1255(e)(1), the Attorney General is
generally barred from adjusting the status of an alien on
the basis of a marriage entered into during removal pro-
ceedings. The statute, however, carves out an exception if
the alien establishes by clear and convincing evidence that
the marriage was entered into in good faith and not for the
purpose of procuring an immigration benefit. 8 U.S.C.
§ 1255(e)(3). While it would be possible on remand for Singh
to overcome the general bar against adjustment of status
based on a marriage entered into during removal proceed-
ings, nevertheless we think his past behavior amounts to an
insurmountable obstacle on his quest for adjustment of
status, and that his application would be denied in the
exercise of discretion. See Dashto v. INS, 59 F.3d 697, 704
(7th Cir. 1995) (alien bears burden of proving that he merits
favorable exercise of discretion based on equitable consider-
ations). In 1991, Singh misrepresented his marital status in
an application for a business visitor visa. That misrepresen-
3
Ordinarily, application for adjustment of status is made to the
INS district director having jurisdiction over the alien’s place of
residence. 8 C.F.R. § 245.2(a). However, once an alien is in re-
moval proceedings, his application for adjustment of status “shall
be made and considered only in those proceedings.” Id.
4
Singh actually married and applied for adjustment of status
after an IJ rejected his notably weak asylum case, in which he
claimed past persecution and fear of future persecution due to
being Hindu in India, where over 80% of the population is Hindu.
8 Nos. 04-2119 & 04-2485
tation, coupled with the fact that Singh subsequently
overstayed his business visitor visa, indicates that Singh
had a preconceived intent to remain permanently in the
United States and misrepresented his intentions when
applying for the visa. In addition, Singh filed an application
for adjustment of status in 1994 based on what the INS
concluded was a sham marriage to Keysa Hines. The INS’
determination was supported by probative evidence gleaned
from interviews with Singh’s grandmother, uncle, and two
other residents of 3331 W. Flournoy, who all stated that
Singh lived on the second floor with his daughter, mother,
and brother, contradicting Singh’s sworn testimony that he
resided with Hines. The Board listed this history of fraudu-
lent behavior when it initially denied Singh’s motion to
reopen despite the approved I-130 petition. That was a
sound discretionary decision, and we have no reason to
believe the Board would change course on a remand for a
discretionary decision on adjustment of status when faced
with the same evidence of fraud. The Board’s reliance on
Velarde was harmless error, and we decline to remand the
case for further proceedings.
III. Conclusion
For the reasons stated herein, Singh’s petitions for review
are DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-15-05
Nos. 04-2119 & 04-2485 9