14‐2657‐ag Singh v. Lynch

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). 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 5th day of November, two thousand fifteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges.

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

ANUP SINGH, Petitioner,

v. 14‐2657‐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.

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 ʺBIAʺ), 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 (ʺIJʺ) 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 partiesʹ

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

appeal.

We review the IJʹs decision, as modified by the BIAʹs decision. See Xue

Hong Yang v. U.S. Depʹt of Justice,

(2d Cir. 2005). We uphold the IJʹs or

BIAʹs factual findings if they are supported by substantial evidence in the record.

‐ 2 ‐

We review questions of law de novo. See Richmond v. Holder,

(2d Cir.

2013).

Singh challenges: (1) the BIAʹs reliance on the IJʹs summary of an

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

(2) the BIAʹs affirmance of the IJʹs discretionary denial of a waiver under former § 212(c)

of the Immigration and Nationality Act (ʺINAʺ),

(c) (1992).

A. The Tape Recording

Singh makes two due process claims based on the IJʹs handling of the tape

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

(2d Cir.

2007) (citation omitted), and (2) ʺcognizable prejudice,ʺ Garcia‐Villeda v. Mukasey,

(2d Cir. 2008) (citation omitted).

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

on the IJʹs 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 agencyʹs reliance on the IJʹs

summary. See Garcia‐Villeda,

(ʺParties 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

‐ 3 ‐

IJʹs 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 agencyʹs 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 IJʹs 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 IJʹs 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 IJʹs summary. Even if an objection were

lodged, as discussed above, Singh fails to show prejudice from the agencyʹs use of the

IJʹs summary.

Therefore, Singhʹs second due process claim fails as well.

B. Section 212(c)

The BIA specifically rejected the IJʹs determination that Singh was

ineligible for section 212(c) relief, but affirmed on the IJʹs 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 agencyʹs

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

(a)(2)(B)(ii), (D); Avendano‐Espejo v. Dep’t of Homeland Sec., 448 F.3d

‐ 4 ‐

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

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

review under

(c)(2)(B)(ii) . . . .ʺ).

Singh argues that the IJʹs 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 Singhʹs attempted sexual

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

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

to the affidavits and witnessesʹ 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,

, 98 n.7 (2d Cir. 2007) (ʺPetitionersʹ 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

‐ 5 ‐