Singh v. Ashcroft
| Decision Date | 05 December 2003 |
| Docket Number | No. 02-16476.,02-16476. |
| Citation | 351 F.3d 435 |
| Parties | Jatinder Pal SINGH, Petitioner-Appellant, v. John ASHCROFT, Attorney General; Charles H. Demore, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Martin Resendez Guajardo, San Francisco, CA, for petitioner-appellant Jatinder Pal Singh.
Josh Braunstein, Washington, DC, Shelley R. Goad, Washington, DC, for respondents-appellees John Ashcroft and Charles H. Demore.
Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-01-03709-SBA.
Before: DIARMUID F. O'SCANNLAIN and A. WALLACE TASHIMA, Circuit Judges, and A. HOWARD MATZ,* District Judge.
On this appeal from the District Court's denial of a habeas corpus petition, we are presented with two familiar issues of habeas jurisdiction. First, does a classification by the Board of Immigration Appeals ("BIA") that a crime committed by an alien facing removal was "particularly serious" constitute an exercise of discretion not reviewable on habeas corpus? Second, does a federal court have habeas jurisdiction to adjudicate an alien's claim that in approving a removal order the BIA violated his rights under the United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment ("the Convention")?
Jatinder Pal Singh ("Singh"), a native and citizen of India, appeals the district court's denial of his habeas corpus petition. Singh argues that the BIA erred in determining that he had been convicted of a "particularly serious crime," which makes him ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3). Singh also argues that the BIA erred in determining that his removal does not violate the Convention.
We have jurisdiction under 28 U.S.C. §§ 2241 and 2253 and we affirm. In doing so, we hold that:
(1) This Court lacks jurisdiction over Singh's challenge to the BIA's determination of the particular seriousness of his crime.
(2) The law implementing the Convention does not divest us of jurisdiction over Singh's Convention claim.
(3) On the merits the BIA did not err in rejecting Singh's Convention claim.
Singh immigrated to the United States from India in 1984, when he was six years old. On July 6, 1998, he pled guilty in a California Superior Court to one count of assault with a weapon or with force likely to produce great bodily injury.
On October 9, 1998, the Immigration and Naturalization Service ("INS") charged Singh with removability under 8 U.S.C. § 1227(a)(2)(A)(iii), which provides that any alien convicted of an aggravated felony is deportable.1 Singh applied for asylum and withholding of removal. As support for his application, Singh offered the declaration of his father. In addition, Singh and his brother, Sadnan Singh ("Sadnan"), both testified orally at a hearing before an Immigration Judge ("IJ").
In his declaration and testimony, Singh's father stated that he fears that the family of his first wife ("Singh's mother") will harm Singh if he returns to India. Singh's father testified that he and Singh's mother were divorced in India but that he promised he would help her immigrate to the United States after he settled here with the couple's two sons (Singh and Sadnan). Singh's father married again and thereafter broke his promise to Singh's mother. The father believes that members of Singh's mother's family, some of whom are high ranking police officers, will try to take revenge against him by targeting Singh. Singh's father has not spoken to Singh's mother's family but he has learned from his own sisters and from his son Sadnan that members of Singh's mother's family are angry with him, that they have threatened to kill him and that they view his son Singh as having taken his side.
Sadnan testified that he visited India in 1995 and stayed with his (and Singh's) mother's family. During that visit, members of the mother's family told him that they were very angry with Singh's father for breaking his promise to Singh's mother, that they blamed the father for some of the mother's health problems and that one uncle threatened Singh's father. Sadnan also testified that his mother's family viewed Singh as having taken his father's side.
The IJ issued an oral decision on January 25, 2001. Because Singh admitted the facts in the Notice to Appear, the IJ ruled that he was removable. The IJ also ruled Singh ineligible for a waiver of deportation under 8 U.S.C. § 1182(h) because he is an aggravated felon. In addition, he found Singh ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3) because his crime — assault with a weapon or force likely to produce great bodily injury — was "particularly serious." The IJ credited much of Singh's testimony about the assault for which he was convicted. The IJ accepted Singh's testimony that on that day he had been drinking with friends, that he and his friends were involved in a fight, that Singh did not have a knife and that he did not stab the assault victim himself. However, Singh admitted that he kicked the victim, and the IJ ruled that kicking the victim while he was on the ground was likely to cause great bodily harm. The IJ also ruled that Singh failed to make a showing of likely torture sufficient to invoke the protections of the Convention.
The BIA dismissed Singh's appeal, agreeing with the IJ that Singh is ineligible for withholding of removal because he committed a particularly serious crime. The BIA found that Singh's conduct during the assault demonstrated a complete disregard for others' safety, noting that evidence in the record showed that Singh kicked the victim in the head.
The BIA also agreed with the IJ that Singh failed to demonstrate that more likely than not he will be tortured in India. In reaching this decision, the BIA noted that members of Singh's mother's family have never threatened Singh, and that even Singh's father, who has been threatened, was able to visit India safely by staying away from his home town.
Singh filed a petition for a writ of habeas corpus which the district court denied on July 29, 2002. The district court explained that the crime itself (assault with a weapon likely to produce great bodily injury), Singh's two-year sentence and his conduct in kicking the victim in the head supported the BIA's finding that his crime was particularly serious. While noting that whether the court had jurisdiction over the Convention claim was an "unsettled" issue, the district court found Singh's assertions that he is likely to be tortured in India "too speculative and without evidentiary support" to implicate the Convention.
The district court's denial of habeas corpus is reviewed de novo. Singh v. Reno, 113 F.3d 1512, 1514 (9th Cir.1997). Questions of subject matter jurisdiction also are reviewed de novo. Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir.2002). "The issues before this court are thus in the same posture as those before the district court and require us to consider the rulings of the BIA." Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995). When the BIA has conducted a de novo review of the record, the Ninth Circuit's review is limited to the BIA's decision, except to the extent the BIA expressly adopted the IJ's opinion. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000).2 Here, the BIA made its own findings based on an independent review of the record. Therefore, the Court limits its review to the BIA's decision.
Pursuant to 8 U.S.C. § 1231(b)(3)(A), the Attorney General ordinarily may not remove an alien to a country where his life or freedom would be threatened on the basis of political opinion or on the basis of race, nationality or membership in a particular social group. However, withholding of removal under this section is not available to any alien whom the Attorney General determines is a "danger to the community of the United States" because he or she has been "convicted... of a particularly serious crime." 8 U.S.C. § 1231(b)(3)(B)(ii).
An aggravated felony that results in at least a five-year sentence is considered a particularly serious crime. Id. Moreover, under Section 1231(b)(3)(B)(ii) the Attorney General may determine that any aggravated felony, even one that results in a sentence of less than five years, qualifies as particularly serious. In Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir.2001), this Court characterized as discretionary a determination by the Attorney General as to whether an aggravated felony resulting in a sentence of less than five years is a particularly serious crime. See also In re S—S—, 22 I. & N. Dec. 458, 1999 WL 38822 (BIA 1999). The Court went on to hold that 8 U.S.C. § 1252(a)(2)(B)(ii) divested it of jurisdiction to review a denial of withholding based upon the BIA's exercise of such discretion.3 In Spencer Enter., Inc. v. United States, 345 F.3d 683 (9th Cir.2003), this Court recently ruled that Section 1252(a)(2)(B)(ii) "refers not to `discretionary decisions' ... but to acts the authority for which is specified under the INA to be discretionary." Id. at 689. (emphasis in original) Citing Matsuk, the Spencer court noted ...
To continue reading
Request your trial
-
Cadet v. Bulger, No. 03-14565.
...by four of our sister circuits. Each circuit has concluded that CAT claims may be raised in a § 2241 petition. See Singh v. Ashcroft, 351 F.3d 435, 441-42 (9th Cir.2003); Ogbudimkpa v. Ashcroft, 342 F.3d 207, 215-22 (3d Cir.2003); Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir.2003);......
-
Auguste v. Ridge
...Saint Fort v. Ashcroft, 329 F.3d 191, 200-02 (1st Cir.2003); Wang v. Ashcroft, 320 F.3d 130, 140-43 (2d Cir.2003); Singh v. Ashcroft, 351 F.3d 435, 441-42 (9th Cir.2003). We have jurisdiction over appeals involving habeas petitions filed in the District Court pursuant to 28 U.S.C. §§ 1291, ......
-
Cornejo-Barreto v. Siefert
...§ 2241 to consider claims by aliens that their removal to a foreign country violates the Torture Convention, see Singh v. Ashcroft, 351 F.3d 435, 440-42 (9th Cir.2003), and he urges us to extend this reasoning to We have long adhered to the general "Rule of Non-Inquiry" that it is the role ......
-
Nadarajah v. Gonzales
...court's decision to grant or deny a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 de novo. Singh v. Ashcroft, 351 F.3d 435, 438 (9th Cir.2003). We review the decision to deny parole under 8 U.S.C. § 1182(d)(5)(A) for abuse of discretion, and the agency's parole dec......