Singh v. Board of Immigration Appeals
Singh v. Board of Immigration Appeals
Opinion of the Court
SUMMARY ORDER
Petitioner Malook Singh, a native and citizen of India, seeks review of an August 24, 2004 order of the BIA affirming the May 27, 2003 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In Re Malook Singh, No. A75 962 531 (B.I.A. Aug. 24, 2004), aff’g No. A75 962 531 (Immig. Ct. N.Y. City May 27, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
In this case, the BIA adopted and affirmed the IJ’s decision “insofar as she found that [Singh] had not satisfied the burden of proof for asylum, withholding of removal or relief under the Convention Against Torture.” The BIA further noted that Singh had failed to “meaningfully address” the IJ’s findings. When the BIA issues an opinion that adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir. 2005); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). We review the agency’s factual findings under the substantial evidence standard, overturning them only if any reasonable adjudicator would be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir. 2004), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir. 2007) (en banc).
The Immigration and Nationality Act (“INA”) specifies that we may review only those categories for relief that an applicant raises before the BIA. 8 U.S.C. § 1252(d)(1); see Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 118 (2d Cir. 2007) (amending Lin Zhong v. U.S. Dep’t of Justice, 461 F.3d 101 (2d Cir. 2006)). However, a petitioner’s failure to argue particular issues before the BIA does not, as a statutory matter, bar our jurisdiction to consider those issues. Lin Zhong, 480 F.3d at 121-22. We have described an alien’s failure to raise issues before the BIA as “an affirmative defense subject to waiver,” id. at 124; however, even when the government does not raise exhaustion in its brief, we may still refuse to consider unexhausted issues, id. at 107 n. 1.
The IJ’s finding in regard to burden of proof rested on her adverse credibility finding, which was fraught with errors.
Given these significant errors in the IJ’s analysis, we cannot confidently predict that the agency would reach the same result on remand absent the error-infected portions of the analysis. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir. 2006). Accordingly, the burden of proof finding, which rested on the adverse credibility determination, cannot be sustained.
For the foregoing reasons, the petition for review is DISMISSED in part and GRANTED in part; the decision of the BIA is VACATED; and the ease is REMANDED to the BIA for further proceedings consistent with this opinion.
. In his counseled brief to the BIA, Singh challenged the IJ’s adverse credibility determination generally, but did not argue against the specific findings (listed herein) made by the IJ with respect to the credibility determination. However, because the government waived any argument regarding failure to exhaust issues, we will address those findings. Lin Zhong, 480 F.3d at 123-24.
. The IJ also found that Singh had “not shown that his claim falls under any of the enumerated grounds” for asylum. It is unclear whether the BIA did not explicitly affirm this finding because it disagreed with the finding or because of an observation that the finding was not "meaningfully addressed on appeal.” However, a review of the record
. 8 C.F.R. § 208.13(c)(1) provides, in relevant part: "[A]n applicant shall not qualify for asylum if [8 U.S.C. § 1158(b)(2)] applies to the applicant.” 8 U.S.C. § 1158(b)(2)(A)(iv) renders an alien ineligible for asylum when ''there are reasonable grounds for regarding the alien as a danger to the security of the United States.”
. 8 C.F.R. § 1208.16(d)(2) provides, in relevant part: "[A]n application for withholding of removal under [8 U.S.C. § 1231(b)(3)] or under the Convention Against Torture shall be denied if the applicant falls within [8 U.S.C. § 1231(b)(3)(B)].” 8 U.S.C. § 1231 (b)(3)(B)(iv) renders an alien ineligible for withholding of removal when "there are reasonable grounds to believe that the alien is a danger to the security of the United States.”
. 8 C.F.R. § 1208.17(a) provides, in relevant part: “An alien who ... has been found ... to be entitled to protection under the Convention Against Torture [] and is subject to the provisions for mandatory denial of withholding of removal under § 1208.16(d)(2) ..., shall be granted deferral of removal to the country where he or she is more likely than not to be tortured.”
. Although we do not have jurisdiction over the IJ’s determination that Singh posed "a danger to the security of the United States” because he "assisted a known and wanted terrorist,” for purposes of his claims for asylum, withholding of removal, and withholding of removal under CAT, we note that, on remand, the BIA may wish to reconsider that determination in light of the fact that Singh testified that he did so under duress and at gunpoint and in light of the fact that Singh is no longer represented by the attorney that failed to address this issue in his BIA brief.
Reference
- Full Case Name
- Malook SINGH v. The BOARD OF IMMIGRATION APPEALS
- Status
- Published