451 F.3d 400 (6th Cir. 2006), 04-4352, Singh v. Gonzales

Docket Nº:Parveen SINGH (04-4352) and Amandeep Singh (04-4353), Petitioners,
Citation:451 F.3d 400
Case Date:June 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 400

451 F.3d 400 (6th Cir. 2006)

Parveen SINGH (04-4352) and Amandeep Singh (04-4353), Petitioners,

v.

Alberto R. GONZALES, Attorney General, Respondent.

Nos. 04-4352, 04-4353.

United States Court of Appeals, Sixth Circuit.

June 21, 2006

        Argued: March 16, 2006.

        On Review of a Decision of the Board of Immigration Appeals, Nos. A43 927 846; A43 927 847

Page 401

        ARGUED:

        Scott E. Bratton, MARGARET WONG & ASSOCIATES, Cleveland, Ohio, for Petitioners.

        William C. Peachey, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, for Respondent.

        ON BRIEF:

        Margaret W. Wong, MARGARET WONG & ASSOCIATES, Cleveland, Ohio, for Petitioners.

        William C. Peachey, Ethan B. Kanter, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, for Respondent.

        Before: DAUGHTREY and GILMAN, Circuit Judges; RUSSELL, District Judge[*]

        OPINION

        RONALD LEE GILMAN, Circuit Judge.

        Parveen Singh and her daughter Amandeep, who are both natives and citizens of India, petition for review of a decision by the Board of Immigration Appeals (BIA) that denied their requests for discretionary relief and ordered them removed from the United States. The BIA affirmed the decision of the immigration judge (IJ), who (1) found Parveen removable because she had entered the United States on a visa procured through fraud, (2) imputed the fraudulent conduct of Parveen and her husband to their then five-year-old daughter Amandeep, and (3) denied Parveen and Amandeep any form of discretionary relief.

        In their petition for review, the Singhs argue that the BIA erred in denying them a hearing at which they could develop the factual basis for their request for a discretionary waiver and in imputing to Amandeep the fraudulent conduct of her parents. Because we conclude that the BIA's decision to impute to Amandeep the fraudulent conduct of her parents is an unreasonable interpretation of the Immigration and Nationality Act (INA), we GRANT amandeep's petition for review in order to set aside her removal on the basis of fraud and REMAND her case to the BIA for a formal determination of whether she is removable as an alien who entered the United States without valid documentation. On the other hand, we DISMISS both Parveen's and Amandeep's challenges to the denial of discretionary relief because we lack jurisdiction to review the Attorney General's decision regarding such requests.

        I. BACKGROUND

        A. Factual background

        Surrinder Singh, the husband of Parveen and the father of Amandeep, entered the United States in 1989 under a visa in the name of his deceased cousin, Lai Singh. Lai had passed away in 1988 shortly before appearing at the United States Embassy in India to receive his immigration visa. Surrinder fraudulently assumed the identity of his deceased cousin and secured a visa that allowed him to enter the United States.

        Following Surrinder's admission into the United States, Surrinder obtained a divorce from Parveen . They remarried in India shortly thereafter, with Surrinder assuming the name of Lai Singh. The purpose of this second marriage was to obtain admission to the United States for Parveen and Amandeep as the spouse and daughter, respectively, of a lawful permanent resident (LPR). Parveen later admitted that she was aware of her husband's plan to secure a visa for her and for Amandeep, and that the three Singhs had

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entered the country "on false pretenses." While residing in the United States in 1994, the Singhs had a second child, Amaninder, who is a United States citizen and not a part of these proceedings.

        B. Procedural background

        The government initiated removal proceedings against Parveen and Amandeep in June of 2001, asserting that both of them were removable under § 237(a)(1)(A) of the Immigration and Nationality Act (INA), which is codified at 8 U.S.C. § 1227(a)(1). That provision allows aliens to be removed who were inadmissible at the time of their entry into the United States under other provisions of the INA, including the one establishing that aliens who obtained their immigrant visas or admission "by fraud or by willfully misrepresenting a material fact" are inadmissible. 8 U.S.C. § 1182(a)(6)(C)(i). (Proceedings against Surrinder Singh are being handled separately by the government.)

        In February of 2002, Parveen filed applications for adjustment of status, cancellation of removal, and a waiver of excludability. The IJ addressed Parveen's applications at a removal hearing held in May of 2003. At the hearing, counsel for the Singhs conceded that they were ineligible for cancellation of removal and adjustment of status, and also withdrew their request for permission to depart the United States voluntarily. The IJ issued her decision at the conclusion of the hearing, finding that Parveen and Amandeep were removable and that they were ineligible for all the forms of relief that they had requested. As to the Singhs' request for a discretionary waiver, the IJ stated in her oral opinion:

. . . [T]he Court would further note that given [the] chain of fraud and deception in which these parties have engaged for at least 10 years, if not more, that it is time to call a halt to this play which is being enacted in this courtroom and the Court would deny as a matter of discretion any applications having to do with discretionary relief.

        The IJ then ordered the Singhs removed to India.

        Parveen and Amandeep appealed the IJ's decision to the BIA, arguing that (1) they were both statutorily eligible for a discretionary waiver under § 237(a)(1)(H) of the INA and that the case should be remanded for further consideration of their entitlement to such a waiver, and (2) the government had not met its burden of proving that Amandeep was inadmissible due to her parents' fraud. The BIA, in a per curiam opinion, affirmed the IJ's rulings on all aspects of the Singhs' request for relief and dismissed the appeal. Relying on the Ninth Circuit's decision in Senica v. INS, 16 F.3d 1013 (9th Cir. 1994), and its own decision in Matter o/Aurelio, 19 I & N Dec. 458 (BIA 1987), the BIA "reject[ed] the argument that the parents' fraudulent entry cannot be imputed to their minor daughter, because the intent of the custodial parents has long been imputed to minor children in immigration proceedings." The BIA also "decline[d] to disturb the Immigration Judge's finding that [Parveen and Amandeep] are unworthy of a discretionary waiver under section 237(a)(1)(H)." This timely petition for review of the BIA's decision followed.

        II. ANALYSIS

        A. The BIA's decision to impute to Amandeep the fraudulent conduct of her parents is an unreasonable interpretation of the INA

        Before delving into the governing statutes and caselaw, we pause briefly to highlight what is at stake in the present case. The key issue, simply put, is whether Amandeep

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Singh will be permanently barred from readmission to the United States because of imputed fraud. Amandeep was charged as an alien who secured her admission via fraud or willful misrepresentation. See 8 U.S.C. § 1182(a)(6)(C)(i). In upholding that charge, the IJ and the BIA have imputed to Amandeep the admittedly fraudulent conduct of her parents, even though that conduct occurred when Amandeep was only five years old. As a result, Amandeep is deemed removable and, as an alien deported on the basis of fraud, is likely to be forever barred from residing lawfully in the United States, even on a student visa. See 8 U.S.C. § 1182(i)(l) (allowing the Attorney General to exercise discretion in waiving inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(i) only if the applicant is the spouse, son, or daughter of a U.S. citizen or a LPR). Amandeep is not the "spouse, son or daughter" of a U.S. citizen or a LPR, and the discretionary waiver under § 1182(i)(l) is therefore unavailable to her.

        This consequence could have been avoided had the Department of Homeland Security charged Amandeep under § 212(a)(7)(A)(i) of the INA, which declares inadmissible any immigrant who is not in possession of valid documentation as required by the immigration laws See 8 U.S.C. § 1182(a)(7)(A)(i). Had she been charged under the latter section, Amandeep would be eligible for a waiver under § 212(k) of the INA, a provision that does not require a qualifying relative. See id. § 1182(k) (allowing the Attorney General to admit aliens inadmissible under § 1182(a)(7)(A)(i) in certain instances). With the practical concerns underlying the present case in mind, we turn now to our legal analysis.

         1. Standard of review

        Two distinct standards govern our review of removal decisions by the BIA. We generally review questions of law de novo, but "defer to the BIA's reasonable interpretations of the INA." See Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir. 2005). On the other hand, the factual findings of the IJ are reviewed under the substantial-evidence standard, and we will not reverse those findings "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Hanna v. Gonzales, 128 F. App'x 478, 480 (6th Cir. 2005) (unpublished) (applying this standard in reviewing an IJ's decision that ordered the petitioner to be removed for making a fraudulent misrepresentation in an adjustment-of-status application).

        The first question of law before us is whether the BIA's decision to impute the fraudulent conduct of Amandeep's parents to Amandeep is a reasonable interpretation of the INA. In deciding this question, we accord the BIA's interpretation of the statute deference under Chevron...

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