Singh v. Barr
| Decision Date | 09 December 2020 |
| Docket Number | No. 19-71025,No. 19-70932,19-70932 |
| Citation | 982 F.3d 778 |
| Parties | Manjinder SINGH, Petitioner, v. William P. BARR, Attorney General, Respondent. Kulwant Singh, Petitioner, v. William P. Barr, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Matthew Borowski (argued), Borowski Witmer Immigration Lawyers, Buffalo, New York for Petitioners.
Tracie N. Jones (argued), Trial Attorney; Andrew N. O'Malley and Timothy G. Hayes, Senior Litigation Counsel; Cindy S. Ferrier, Assistant Director; Ethan P. Davis, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency Nos. AXXX-XX7-867, AXXX-XX1-264.
Before: Jay S. Bybee and Daniel P. Collins, Circuit Judges, and Richard G. Stearns,* District Judge.
Petitioners Manjinder Singh and Kulwant Singh are Sikhs from Punjab, India who entered the United States in late 2018.1 The United States Customs and Border Patrol (CBP) determined that Petitioners were inadmissable as aliens not in possession of valid entry documents, and processed them for expedited removal. Manjinder and Kulwant each expressed a fear of returning to India, and credible fear interviews were conducted by United States Citizenship and Immigration Services (USCIS) asylum officers. The asylum officers made negative credible fear determinations in both cases. After review, immigration judges (IJs) concurred in the negative credible fear determinations. Petitioners moved for the IJs to exercise sua sponte authority to reopen their credible fear determinations. Both IJs denied the motions on the basis that IJs lack jurisdiction to reopen credible fear proceedings under 8 C.F.R. § 1208.30(g)(2)(iv)(A). Petitioners seek review of the denials of the motions to reopen.
Because we lack jurisdiction under 8 U.S.C. § 1252 to review Manjinder's and Kulwant's petitions, we dismiss.
Manjinder Singh is a native and citizen of India. In October 2018, Manjinder encountered border patrol agents outside of a U.S. port of entry. CBP determined Manjinder was inadmissible as an alien not in possession of entry documents, processed Manjinder for expedited removal pursuant to 8 U.S.C. § 1225(b)(1),2 conducted an initial interview, and completed a record of his sworn statement. Because Manjinder expressed a fear of returning to India, CBP referred him to USCIS for a credible fear interview. In the interview, Manjinder told the officer that he was a Sikh from Punjab, India; in February 2018, he was working for the Mann Party; in May and July 2018, he was harmed by members of the Congress Party; and he feared future harm from the Congress Party and the Bhartiya Janta Party (BJP) if he returned to India. The asylum officer found that Manjinder was not credible and therefore lacked a credible fear of harm upon return to India.
In November 2018, CBP presented Manjinder with an expedited removal order. At this time, Manjinder requested review of the credible fear determination by an IJ. The matter was referred to Judge Santos-Garcia who held a hearing and affirmed the asylum officer's negative credible fear determination.
Almost four months later, in March 2019, Manjinder filed a motion to reopen the credible fear proceedings. His motion asserted that the asylum officer and Judge Santos-Garcia erred in determining that he was not credible and that he received ineffective assistance of counsel because his counsel did not attend the hearing. Judge Santos-Garcia denied the motion to reopen for a lack of jurisdiction under 8 C.F.R. § 1208.30(g)(2)(iv)(A). Judge Santos-Garcia also found, in the alternative, that the motion to reopen was untimely and Manjinder had been given the opportunity to explain his statements at the November hearing. Manjinder now petitions for review of Judge Santos-Garcia's denial of his motion to reopen the credible fear determination. Manjinder does not request that we review the merits of the credible fear determination.
Kulwant Singh is a thirty-four-year-old male, a native and citizen of India. Kulwant encountered border patrol agents at a port of entry in December 2018. CBP determined that Kulwant was inadmissable as an alien not in possession of valid entry documents and processed him for expedited removal pursuant to 8 U.S.C. § 1225(b)(1). During his interview with CBP, Kulwant expressed a fear of returning to India because he was in danger from the BJP. CBP referred Kulwant for a credible fear interview with a USCIS asylum officer.
Kulwant's credible fear interview took place in January 2019. At his credible fear interview, Kulwant stated that he was a Sikh from Punjab, India; he had been a member of the Mann Party since 2013; in November 2017 and July 2018, he was attacked by the BJP with baseball bats and wooden sticks; and he feared future harm from the BJP if he returned to India. The asylum officer determined that Kulwant was not credible, and therefore lacked a credible fear of returning to India. In February 2019, CBP presented Kulwant with an expedited removal order on the basis of the negative credible fear determination. Kulwant requested review of the negative credible fear determination by an IJ.
Judge Attia held a credible fear hearing and concurred in the asylum officer's negative credible fear determination and remanded the case to USCIS for removal. In April 2019, Kulwant filed a motion to reopen in which he asserted that he received ineffective assistance of counsel and the asylum officer erred by mischaracterizing the record. Judge Attia denied the motion to reopen for a lack of jurisdiction, citing 8 C.F.R. § 1208.30(g)(2)(iv)(A). Kulwant now petitions for review of Judge Attia's denial of his motion to reopen. Kulwant does not request review of the merits of the negative credible fear determination.
The parties agree that our jurisdiction to review administrative immigration proceedings is governed by § 242 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252, as revised by § 306 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, § 306, 110 Stat. 3009-607 (1996). The parties dispute whether 8 U.S.C. § 1252 grants us jurisdiction over petitioners’ appeals.
We have jurisdiction to consider our own jurisdiction. See Daas v. Holder , 620 F.3d 1050, 1053 (9th Cir. 2010).
The parties agree that 8 U.S.C. § 1252 governs our jurisdiction over the petitions for review. The Government contends, however, that § 1252(a)(2)(A) deprives us of jurisdiction to review Manjinder's and Kulwant's petitions. We agree.
We begin with two observations. First, we start from a "presumption favoring judicial review of administrative action." Kucana v. Holder , 558 U.S. 233, 251, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). "When a statute is ‘reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.’ " Id. (quoting Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) ). It takes "clear and convincing evidence" to dislodge this "well-settled" presumption. Kucana , 558 U.S. at 251–52, 130 S.Ct. 827. Second, we recognize that we have routinely exercised jurisdiction under § 1252 to review IJ denials of motions to reopen certain removal proceedings. See , e.g. , Mata v. Lynch , 576 U.S. 143, 147, 135 S.Ct. 2150, 192 L.Ed.2d 225 (2015) (); Kucana , 558 U.S. at 249, 130 S.Ct. 827 (); Bonilla v. Lynch , 840 F.3d 575, 581 (9th Cir. 2016) (); Hernandez v. Holder , 738 F.3d 1099, 1100–01 (9th Cir. 2013) ().
Although we have determined that we have jurisdiction to review an IJ's denial of motions to reopen or reconsider in other contexts, see Bartolome v. Sessions , 904 F.3d 803, 815 (9th Cir. 2018) ; Ayala v. Sessions , 855 F.3d 1012 1017–18 (9th Cir. 2017), we have not yet determined the precise question at issue here: whether § 1252 prohibits our review of an IJ's denial of a motion to reopen a credible fear determination. See Kucana , 558 U.S. at 250 n.17, 130 S.Ct. 827 (); cf. Cervantes v. Barr , 769 F. App'x 456, 456 (9th Cir. 2019) (). We now answer that question, and we conclude that the language of § 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations.
Section 1252(a)(2)(A) governs the availability of judicial review over expedited orders of removal and specified related determinations. That section provides:
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