1 Pursuant to FED. R. APP. P. 43(c), we have substituted Alberto

Gonzales for John Ashcroft as the named respondent.

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 reconsideration. Singh sought the adjustment of status pursuant

to an approved visa petition filed by his wife, whom he
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 nonimmigrant visa at the United States Consul at New

Delhi, India. At that time, [Singh] gave sworn testimony, 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 investigation, 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, constitutes a wilful misrepresentation in violation of Section

212(a)(6)(C) [of the] INA.
Nos. 04-2119 & 04-2485 3

2 Singh argues that the Board erred in considering the evidence

about the bona fides of his marriage to Hines because it is inadmissible 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.

A.R. 6-7. In its Notice of Intent to Deny Petition for Alien

Relative letter to Keysa Hines, the INS detailed its investigation of the Singh/Hines marriage, which included interviews 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 immigration judge (“IJ”) ruled against Singh on all counts and

denied him voluntary departure due to his misrepresentation 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 issuing 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,
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 jurisdictionstripping 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 discretion of the Attorney General.” Moreover, a subsection of

§ 1252, the section that also contains the jurisdiction-stripping 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). Consequently, 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 standard. 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 findings 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 misrepresentation 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 possible 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 circumstances 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 approved 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 determine 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

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 removal 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.

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 issues: (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 proceedings. 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 proceedings, 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 considerations). In 1991, Singh misrepresented his marital status in

an application for a business visitor visa. That misrepresen-
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 fraudulent 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