Singh v. Mukasey

Decision Date21 January 2009
Docket NumberNo. 04-3454-ag.,04-3454-ag.
PartiesLakhwinder SINGH, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, U.S. Department of Homeland Security, Respondents.
CourtU.S. Court of Appeals — Second Circuit

Anne E. Doebler, Buffalo, NY, for Petitioner.

Paul M. O'Brien, United States Attorney, Middle District of Tennessee (Brent A. Hannafan, Assistant United States Attorney, Nashville, TN), for Respondents.

Before KEARSE, SACK, and KELLY,** Circuit Judges.

PAUL J. KELLY, JR., Circuit Judge.

Petitioner Lakhwinder Singh petitions for review of a BIA final order affirming the decision of an IJ in Buffalo, New York, which ordered Mr. Singh removed and deported from the United States as an "alien who ... knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law" under 8 U.S.C. § 1182(a)(6)(E)(i). By oral decision entered on March 25, 2003, the IJ held that Mr. Singh was removable as an "alien smuggler," J.A. 35, and the BIA affirmed without opinion on June 3, 2004, J.A. 2. Having exhausted his administrative remedies, Mr. Singh now appeals. Our jurisdiction arises under 8 U.S.C. § 1252(b)(2).

Background

Mr. Singh is an Indian citizen and a permanent resident of the United States, residing in upstate New York. J.A. 63, 73-74, 91, 251. He arrived in the United States in 1999 and is married to a United States citizen. J.A. 74-75. Mr. Singh and his wife have two young children, and he has been employed in the engineering department of a communications company since 1999. J.A. 75-76.

In January 2001, Mr. Singh and his family lived in a duplex home in Buffalo, New York, upstairs from Mr. Sukhpreet Singh Bedi, whom Mr. Singh had met approximately two to three months prior to the events at issue. J.A. 77-79. They were friendly, but not overly familiar with one another. J.A. 79-82, 94-95. Mr. Singh testified that he did not "know if [Mr.] Bedi was working but maybe he had [said] that he was working at some gas station." J.A. 83.

On January 28, 2001, Mr. Singh and Mr. Bedi traveled to a strip club in St. Catharine's in Ontario, Canada, and spent several hours there. J.A. 86, 90, 97, 105, 108. Mr. Singh had been to this particular club, and no other, several times before; however, it was Mr. Bedi's first time to such an establishment. J.A. 88-89, 101, 109. Before their trip, Mr. Singh confirmed that Mr. Bedi had his Canadian passport with him because Mr. Singh's aunt, a translator for United States immigration authorities, had warned him about the trouble that could arise for permanent residents traveling across the border with improperly documented passengers. J.A. 91-92, 94, 141. Mr. Singh testified that he believed a Canadian passport was sufficient for the trip and did not realize that Mr. Bedi required any additional documentation. J.A. 93-94. Mr. Singh further testified that Mr. Bedi had traveled back and forth between Canada and Buffalo on a few occasions, without any immigration problems. J.A. 152. On their way home from the club, Mr. Singh suggested that they tell immigration authorities they were actually coming from Hamilton, Ontario, in order to save Mr. Singh any embarrassment. J.A. 108-10, 113, 161-62. Mr. Singh's wife was not aware that he had been visiting a strip club that night, J.A. 86, and Mr. Bedi was agreeable to the story, J.A. 110.

At the Lewiston Bridge border inspection station at approximately 1:30 a.m., Mr. Singh informed the primary inspecting officer, Kenneth Patten, that they were en route from Hamilton. J.A. 116-18, 151-52, 193-95. Mr. Singh and Mr. Bedi were then told to park the car and come into the station, where they were separated. J.A. 119. Mr. Singh testified that, after waiting over an hour, J.A. 119, Officer Patten called him into a small room for an interrogation, which lasted more than four hours. J.A. 124, 145-47, 197-99, 207. He stated that he was repeatedly threatened with jail, and was told that he could go home if he agreed with the statements Officer Patten presented to him. J.A. 123-24, 129, 147-49, 154-57, 159, 162-63.

Mr. Singh testified that he did not feel as if he was free to leave while waiting or during the interrogation, not only because there were "officers everywhere," but also because immigration agents were holding his car, driver's license, and permanent resident card. J.A. 122, 143-45. Officer Patten confirmed that Mr. Singh was not free to leave once he was referred to the secondary inspection station. J.A. 212. Moreover, during the interview Mr. Singh broke down crying and eventually began "rambling on." J.A. 188-89, 202-03, 210.

Mr. Singh claims that, at the outset, he was not informed of his right to speak with an attorney before giving his statement, that he was going to be put into removal proceedings, or that he would eventually need to appear before a judge. J.A. 150, 189-90, 211. He was merely told that he would need to sign various documents before he would be permitted to leave. J.A. 150. Mr. Singh signed many documents that morning, and an officer other than Officer Patten witnessed his signature on these documents. J.A. 155. Among them was a three-page, double-spaced "statement," which he insists (1) he "never read," (2) was obtained involuntarily, (3) did not include any explanation of his rights unlike the form Mr. Bedi signed, (4) indicated it was being taken "[I]n the case of: Sukhpreet Singh BEDI," and (5) did not reflect the actual statements he made to the interrogating officer. J.A. 128, 129, 131-36, 181, 186-87, 239 (Mr. Singh's statement), 244 (Mr. Bedi's statement). In fact, Officer Marianna Zavala, the witnessing officer, testified that her signature on the statement meant that she witnessed the interrogation Officer Patten conducted, but in reality she only witnessed "bits and pieces" of the interview and she did not recall seeing Mr. Singh actually sign the statement. J.A. 167-68, 170, 177-78, 190-91.

In relevant part, the statement reads as follows:

Q: Who are you traveling with today?

A: Sukhpreet Singh BEDI.

Q: What is your relationship with Mr. BEDI?

A: A friend, but he calls me like a brother.

Q: Why are your [sic] traveling with Mr. BEDI today?

A: We went to a strip club in St. Catherines today.

Q: Where did you pick Mr. BEDI up at?

A: From downstairs at my house.

Q: When I spoke to you outside, where did you tell me that you picked Mr. BEDI up at?

A: I told you Hamilton, sir.

Q: Why did you tell me you picked Mr. BEDI up in Hamilton?

A: Because he (Mr. BEDI) told me to say we were coming from Hamilton.

Q: Why did Mr. BEDI tell you to say you were coming from Hamilton?

A: Because if we told the truth, you would not allow him to enter.

Q: Does Mr. BEDI live with you?

A: No.

Q: Where does Mr. BEDI live?

A: As far as I know, he is staying with his cousin in the flat below me.

Q: When I spoke to you outside, and then inside, where did you tell me Mr. BEDI lived?

A: Hamilton, but I have never gone there.

Q: How long has Mr. BEDI lived in the apartment below you?

A: I don't know exactly, about two or three months.

Q: Have you ever picked Mr. BEDI up at work?

A: No.

Q: Where does Mr. BEDI work?

A: He told me at a gas station in Niagara Falls, New York.

Q: What is the name of the gas station Mr. BEDI is employed at?

A: A Getty gas station.

Q: Who is the owner of that Getty gas station that employs Mr. BEDI?

A: Bobby that's all I know.

Q: How long has he worked there?

A: I don't know.

Q: What did you tell me earlier, when I asked you, where does Mr. BEDI work?

A: I told [you] he doesn't work.

Q: Why did [you] tell me that he does not work?

A: I was afraid that they are not going to let him (Mr. BEDI) enter.

Q: When I asked Mr. BEDI outside, if he had ever lived, worked or gone to school in the U.S., he said no. Why didn't you say anything about his working at the Getty gas station or his living in the apartment below you at that time?

A: Because I was afraid you wouldn't allow him in the U.S. and you would send him back to Hamilton.

Q: As far as you know, does Mr. BIDI [sic] have permission from the U.S. government to live or work in the U.S.?

A: No, he doesn't have any permission.

Q: Did you know your Mr. BEDI needed a permit to work in the U.S.?

A: Yes.

Q: Did you know it was a violation of the law to work in the U.S. without permission of the U.S. government?

A: Yes.

J.A. 240-41.

Eventually, that morning sometime before 8 a.m., Officer Patten served Mr. Singh with a Notice to Appear, which rendered him the "arresting officer," according to the IJ. J.A. 215. At that point, Mr. Singh had been in the immigration offices from approximately 1:30 a.m. the night before until 7 a.m. that morning, and had not had any sleep since approximately 7:30 a.m. the previous morning. J.A. 143, 194. While Mr. Singh briefly saw Mr. Bedi on the morning of his release from the immigration offices, when Mr. Singh's wife arrived, he has not seen Mr. Bedi since. J.A. 120-21. Mr. Bedi was immediately deported to Canada that morning. J.A. 174.

On this petition for review of the IJ's oral decision ordering Mr. Singh's removal and the BIA's affirmance, Mr. Singh argues that the IJ erred (1) in making unsupported credibility findings, and (2) in not suppressing Mr. Singh's statement.1 Therefore, he claims the government failed to establish by "clear, convincing and unequivocal evidence" that he violated 8 U.S.C. § 1182(a)(6)(E)(i).

Discussion

Where the BIA affirms the decision of the IJ without opinion, we review the IJ's decision directly as the final agency determination. Ci Pan v. U.S. Att'y Gen., 449 F.3d 408, 410 (2d Cir.2006) (citing Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006)). We review factual findings, including adverse credibility determinations, for substantial evidence, "overturning them only if any reasonable adjudicator...

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