Singh v. Gonzales

• Decision Date: 03 January 2006
• Docket Number: No. 04-4261.,04-4261.
• Citation: 432 F.3d 533
• Parties: Bhupinder SINGH, Petitioner v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States; Bureau of Immigration & Customs Enforcement; Kent Frederick, District Director, Philadelphia District Immigration and Customs Enforcement Respondents.
• Court: U.S. Court of Appeals — Third Circuit

432 F.3d 533

Bhupinder SINGH, Petitioner v. Alberto R. GONZALES,¹ Attorney General of the United States; Bureau of Immigration & Customs Enforcement; Kent Frederick, District Director, Philadelphia District Immigration and Customs Enforcement Respondents.

No. 04-4261.

United States Court of Appeals, Third Circuit.

Argued December 5, 2005.

January 3, 2006.

COPYRIGHT MATERIAL OMITTED

Christine J. Sabas (Argued), Lewisburg, PA, for Petitioner.

Peter Keisler, Assistant Attorney General, Civil Division, Mary Jane Candaux, Senior Litigation Counsel, Melissa Neiman-Kelting, Attorney (Argued), Office of Immigration Litigation, United States Department of Justice, Ben Franklin Station, Washington, D.C., for Respondent.

Before RENDELL, FISHER, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Petitioner, Mr. Bhupinder Singh, seeks review of the decision of the Board of Immigration Appeals ("BIA") determining that he is removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), and a subsequent BIA decision affirming without opinion the denial by the Immigration Judge ("IJ") of his claims for withholding of removal and protection under the Convention Against Torture ("CAT"). We will deny the petition.

I.

Singh is a native and citizen of India who immigrated to the United States in 1999, and obtained lawful permanent resident status. On January 30, 2001, Singh was driving in Lancaster County, Pennsylvania. When another motorist made an obscene gesture at him, he responded by pointing a BB gun at the driver. Local police pulled him over and arrested him based on the incident. He was charged, in relevant part, with simple assault under 18 Pa. Cons.Stat. Ann. § 2701(a)(3), and recklessly endangering another person under 18 Pa. Cons.Stat. Ann. § 2705. On August 21, 2001, Singh pled guilty to, and was convicted of, both offenses in the Lancaster County Court of Common Pleas.

As a result of these convictions, on September 15, 2001, the then-Immigration and Naturalization Service² ("INS") served Singh with a Notice to Appear charging him with removability under sections 237(a)(2)(A)(i) and (iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1227(a)(2)(A)(i) & (iii). Section 1227(a)(2)(A)(i) renders aliens removable if they have committed certain crimes involving moral turpitude, while § 1227(a)(2)(A)(iii) provides for removal of aliens who have committed an aggravated felony as defined in INA § 101(a)(43), 8 U.S.C. § 1101(a)(43). Singh moved to terminate his removal proceedings on the basis that his convictions were neither crimes of moral turpitude nor aggravated felonies. On July 23, 2003, an IJ in Philadelphia, Pennsylvania determined that both crimes were aggravated felonies, but neither were crimes involving moral turpitude. The IJ denied Singh's motion to terminate removal proceedings and ordered him removed. He was then placed in detention in York, Pennsylvania. Accordingly, venue was changed to York.

Following the change of venue, Singh received a merits hearing at which a new IJ again determined that neither crime involved moral turpitude, but also that neither was an aggravated felony. The IJ accordingly terminated the removal proceedings against Singh on October 20, 2003, whereupon the INS appealed to the BIA. The BIA sustained the appeal on March 1, 2004, ruling that both crimes, simple assault and recklessly endangering another person, were aggravated felonies, thereby again rendering Singh removable. The BIA did not enter a final order of removal, but instead remanded the case to allow Singh opportunity to seek relief from removal by applying for withholding of removal and protection under the CAT.

At his June 3, 2004 hearing before the IJ, Singh presented his claims for withholding of removal and CAT relief. He claimed that as an ethnic Sikh, he would face persecution upon return to India, and specifically, upon return to Punjab, a Sikh state within India. Singh testified that he feared arrest and loss of his life should he return to India, based on the fate of two uncles who had been members of the Akali Dal, a movement seeking an independent Sikh state. He called as a witness a third uncle who testified that the other uncles had been arrested in 1984. This third uncle also testified that he feared for Singh's safety in India because Singh would be likely to support the Akali Dal, and would be immediately recognizable as a Sikh because of his surname. The uncle conceded that Singh's parents had been members of the Akali Dal, but had never been arrested. The 2003 Country Report on India current at the time of Singh's hearing noted that the violence and disappearances in Punjab during the 1990s had ended, and that while some sporadic human rights abuses may still occur, they are sparse.

The IJ found that Singh had not shown a clear probability of persecution with respect to his claim for withholding of removal, nor, regarding his claim for CAT relief, that it was more likely than not that he would be tortured. Accordingly, the IJ ordered him removed to India.

On July 2, 2004, Singh filed an appeal with the BIA,³ claiming that (1) the IJ violated his Fifth Amendment right to due process by limiting him to examining just one of the three witnesses he sought to call, and (2) that his application for relief from removal was denied in error. The BIA affirmed without opinion on October 7, 2004. Singh's petition for review in this Court, filed on November 8, 2004, is timely. Singh has also timely sought review of the BIA's March 1, 2004 determination in the Government's appeal to the BIA that his past criminal convictions constituted aggravated felonies, as well as the due process and relief from removal claims he raised in his own subsequent BIA appeal.⁴

II.

Under the REAL ID Act, our jurisdiction encompasses "constitutional claims or questions of law raised upon a petition for review." REAL ID Act, § 106(a)(1)(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (2005), codified at 8 U.S.C. § 1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005).⁵ This represents an enlargement of our jurisdiction over final orders of removal issued against aggravated felons, which, prior to enactment of REAL ID, was proscribed by 8 U.S.C. § 1252(a)(2)(C).⁶ Whether Singh's convictions are aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii) presents a question of law within our subject matter jurisdiction. Singh's due process claims are constitutional in nature, and within our jurisdiction under the REAL ID Act. Finally, we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to consider Singh's CAT and withholding of removal claims to the extent they present questions of law, or of the application of law to undisputed fact. See Kamara v. Att'y Gen., 420 F.3d 202, 211 (3d Cir.2005) (finding that court of appeals had jurisdiction under REAL ID Act to review legal determinations and application of law to fact under the CAT).

III.

We first determine whether Singh is removable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), and conclude that he is. For purposes of the INA, 8 U.S.C. § 1101(a)(43) defines "aggravated felony" to include a wide array of offenses; relevant to this case is subsection (F), which brings "a crime of violence [defined in 18 U.S.C. § 16] for which the term of imprisonment [is] at least one year" within the ambit of the definition. In turn, 18 U.S.C. § 16 defines "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The present question is whether simple assault under 18 Pa. Cons.Stat. Ann. § 2701(a)(3), or recklessly endangering another person under 18 Pa. Cons.Stat. Ann. § 2705-the crimes for which Singh was convicted-are crimes of violence within 18 U.S.C. § 16, and, therefore, aggravated felonies under the INA, 8 U.S.C. § 1101(a)(43).

The BIA's interpretation of 18 U.S.C. § 16 is not entitled to deference by this Court: as a federal criminal provision outside the INA, it lies beyond the BIA's area of special expertise. Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir.2005); Francis v. Reno, 269 F.3d 162, 168 (3d Cir.2001). We exercise plenary review over the BIA's purely legal determination that Singh's convictions for simple assault and recklessly endangering another person were aggravated felonies. Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002). With this in mind, we turn to the Pennsylvania crimes of which Singh has been convicted, and conclude that his conviction for simple assault qualifies as an aggravated felony, but that his conviction for recklessly endangering another person does not.

As an initial matter, we note that both crimes were misdemeanors under Pennsylvania law; thus, neither could be a "felony" under § 16(b), which relies on the state's grading of the offense to determine whether it is a "felony." Francis, 269 F.3d at 168-70. Therefore, we consider whether either conviction was for an offense "that has as an element the use, attempted use, or threatened use of physical force against the person or property of another" under § 16(a).⁷ The underlying facts of the conviction are not relevant; rather, we must "look to the elements and the nature of the offense of conviction" when determining whether it is a crime of violence.⁸ Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004).

To qualify as a "crime of violence" within 18 U.S.C. § 16(a), a criminal statute must require a mens rea of specific intent to use force; mere recklessness is insufficient. Tran, 414 F.3d at 470 (citing United States v. Parson, 955 F.2d 858, 866 (3d Cir.1992)). We have held...