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Singh v. Lynch

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED

ON OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE

P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT

FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE

( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT

ON ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 5 th day of November, two thousand fifteen.

PRESENT: ROBERT D. SACK,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

ANUP SINGH,

Petitioner

,

v. 14

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‐ ag

LORETTA E. LYNCH, UNITED STATES

ATTORNEY GENERAL,

Respondent. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &

Fasano, LLP, New York, New York.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is

automatically substituted for former Attorney General Eric H. Holder, Jr.‐ 2

‐ FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant Attorney

General, Civil Division, Terri J. Scadron,

Assistant Director, Wendy Benner

‐ León, Trial

Attorney, Office of Immigration Litigation,

United States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a decision

of the Board of Immigration Appeals (the ʺ BIA ʺ ), IT IS ORDERED, ADJUDGED, AND

DECREED that the petition for review is hereby DENIED in part and DISMISSED in

part.

Anup Singh, a native and citizen of India, seeks review of a June 26, 2014

decision of the BIA, dismissing the appeal from the May 9, 2003 and October 4, 2011

decisions of an Immigration Judge ( ʺ IJ ʺ ) ordering his removal. In re Anup Singh

, No.

A040 054 658 (B.I.A. Jun. 26, 2014), dismissing the appeal from No. A040 054 658

(Immig. Ct. New York City, May 9, 2003, Oct. 4, 2011). Singh, a lawful permanent

resident, was convicted of first

‐ degree attempted sexual abuse. We assume the parties ʹ

familiarity with the underlying facts, procedural history of the case, and issues on

appeal.

We review the IJ ʹ s decision, as modified by the BIA ʹ s decision. See Xue

Hong Yang v. U.S. Dep ʹ t of Justice

, 426 F.3d 520, 522 (2d Cir. 2005). We uphold the IJ ʹ s or

BIA ʹ s factual findings if they are supported by substantial evidence in the record. Id

.‐ 3

‐ We review questions of law de novo

. See Richmond v. Holder

, 714 F.3d 725, 728 (2d Cir.

2013).

Singh challenges: (1) the BIA ʹ s reliance on the IJ ʹ s summary of an

inaudible portion of a tape of a merits hearing held in 2000, rather than a transcript; and

(2) the BIA ʹ s affirmance of the IJ ʹ s discretionary denial of a waiver under former § 212(c)

of the Immigration and Nationality Act ( ʺ INA ʺ ), 8 U.S.C. § 1182(c) (1992).

A. The Tape Recording

Singh makes two due process claims based on the IJ ʹ s handling of the tape

recording. To prevail on a due process claim, Singh must show (1) that he ʺ was denied

a full and fair opportunity to present [his] claims or that the IJ or BIA otherwise

deprived [him] of fundamental fairness, ʺ Burger v. Gonzales

, 498 F.3d 131, 134 (2d Cir.

2007) (citation omitted), and (2) ʺ cognizable prejudice, ʺ Garcia

‐ Villeda v. Mukasey

, 531

F.3d 141, 149 (2d Cir. 2008) (citation omitted).

First, Singh argues that he was denied due process because the BIA relied

on the IJ ʹ s summary of testimony, which in turn relied on a remastered compact disc

that the BIA had previously determined to be defective. However, Singh has not

identified any cognizable prejudice flowing from the agency ʹ s reliance on the IJ ʹ s

summary. See Garcia

‐ Villeda

, 531 F.3d at 149 ( ʺ Parties claiming denial of due process in

immigration cases must, in order to prevail, allege some cognizable prejudice fairly

attributable to the challenged process. ʺ (citation omitted)). He does not argue that the‐ 4

‐ IJ ʹ s summary was in any way incorrect or deficient, nor does he explain how any of the

information missing from the transcript was relevant to the agency ʹ s discretionary

denial of section 212(c) relief. Thus, his first due process claim fails.

Second, Singh argues that his due process rights were violated because the

BIA failed to address the IJ ʹ s purported misrepresentation that he had consented to the

use of a summary of the proceedings. Although the record does not make clear

whether a hearing was held regarding the IJ ʹ s decision to summarize the inaudible

testimony

‐‐ and whether the parties in fact consented to this summary ‐‐ Singh claims

that he lodged an objection to the use of the IJ ʹ s summary. Even if an objection were

lodged, as discussed above, Singh fails to show prejudice from the agency ʹ s use of the

IJ ʹ s summary. Id

. Therefore, Singh ʹ s second due process claim fails as well.

B. Section 212(c)

The BIA specifically rejected the IJ ʹ s determination that Singh was

ineligible for section 212(c) relief, but affirmed on the IJ ʹ s alternative ground, declining

to grant a waiver as a matter of discretion. CAR at 5. Accordingly, this Court assumes

Singh is eligible for the waiver, and the only issue left for consideration is the agency ʹ s

discretionary denial of relief.

We lack jurisdiction to review a denial of discretionary relief, such as a

section 212(c) waiver, unless a petitioner raises a constitutional claim or question of law.

See 8 U.S.C. § 1252(a)(2)(B)(ii), (D); Avendano

‐ Espejo v. Dep’t of Homeland Sec.

, 448 F.3d‐ 5

‐ 503, 505 (2d Cir. 2006) ( ʺ [w]e hold that an IJ ʹ s decision to grant or deny a section 212(c)

waiver of removal constitutes a discretionary decision that we lack jurisdiction to

review under 8 U.S.C. § 1252(c)(2)(B)(ii)

. . . . ʺ ).

Singh argues that the IJ ʹ s determination that the negative equities

outweighed the favorable one was based on a contradiction, namely, that the IJ

discredited affidavits because the affiants lacked knowledge of Singh ʹ s attempted sexual

abuse conviction, while elsewhere noting the same affiants testified about their limited

knowledge of Singh ʹ s conviction. Singh is merely quarreling with the weight the IJ gave

to the affidavits and witnesses ʹ testimony does not raise a constitutional issue or

question of law. See Avendano

‐ Espejo

, 448 F.3d at 505

‐ 06; see also Blake v. Carbone

, 489

F.3d 88, 98 n.7 (2d Cir. 2007) ( ʺ Petitioners ʹ eligibility for a § 212(c) waiver is a question of

law, unlike the discretionary and unreviewable decision of whether such a waiver

ultimately should be granted. ʺ ).

For the foregoing reasons, the petition for review is DENIED in part and

DISMISSED in part.

FOR THE COURT:

Catherine O = Hagan Wolfe, Clerk