Singh v. U.S. Dept. of Homeland Sec.

• Decision Date: 29 February 2008
• Docket Number: Docket No. 06-5616-ag.
• Parties: Kulwinder SINGH, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, United States Department of Justice, & Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> United States Attorney General, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

526 F.3d 72

Kulwinder SINGH, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, United States Department of Justice, & Michael B. Mukasey,^* United States Attorney General, Respondents.

Docket No. 06-5616-ag.

United States Court of Appeals, Second Circuit.

Submitted: December 5, 2007.

Decided: February 29, 2008.

Amended: May 12, 2008.

Warren S. Hecht, Forest Hills, NY, for Petitioner.

James E. Grimes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division (Peter D. Keisler, Assistant Attorney General, Civil Division; Linda S. Wernery, Assistant Director, on the brief), U.S. Department of Justice, Washington, D.C., for Respondents.

Before: STRAUB and HALL, Circuit Judges, and CHARLES S. HAIGHT, JR., District Judge.^**

STRAUB, Circuit Judge:

Petitioner Kulwinder Singh challenges the November 15, 2006 decision of the Board of Immigration Appeals ("BIA") affirming without opinion the May 16, 2005 decision of Immigration Judge ("IJ") Philip L. Morace (1) ordering Singh removed on the ground that he had committed a crime of moral turpitude, and (2) denying Singh's application for cancellation of removal. In re Kulwinder Singh, No. A 74 957 794 (B.I.A. Nov. 15, 2006), aff'g No. A 74 957 794 (Immig. Ct. N.Y. City May 16, 2005).

This case requires us to determine whether the IJ erroneously concluded that the government had presented clear and convincing evidence that petitioner Kulwinder Singh had been convicted of second degree assault under New York Penal Law ("N.Y.P.L.") § 120.05(1), which the IJ determined was a crime of moral turpitude and thus a removable offense. Singh argues (1) that the government should be "bound" to the precise allegations contained in his Notice to Appear ("NTA"), which did not specify a subsection of N.Y.P.L. § 120.05; (2) that evidence upon which the IJ relied in determining that Singh had been convicted under § 120.05(1) was not clear and convincing because it was unreliable and contradicted by other evidence; and (3) that the IJ exceeded his allowable discretion in denying his motion for a continuance. For the reasons stated below, we DISMISS in part and DENY in part the petition for review.

FACTS AND PROCEDURAL BACKGROUND

Singh, a citizen of India, testified before the IJ that he arrived in the United States in 1992. According to his testimony, Singh discarded his passport while en route to the United States, and upon arrival, used a false name before Immigration and Naturalization Service ("INS") officials.¹ Singh testified that the INS officials temporarily released him but asked him to return to the immigration office at the airport, which he did not do. Singh further testified that INS authorities gave him paperwork at this time but he later lost it. On January 25, 1996, Singh applied to adjust his immigration status to lawful permanent resident, and the INS granted Singh's application on May 4, 1996.

On November 13, 2001, Singh had an argument with a co-worker in Queens, New York, in which Singh struck the individual with a stick. According to Singh, the co-worker then threatened to inform the police about the incident unless Singh paid him, which Singh refused to do. On November 17, 2001, Singh was arrested in connection with the altercation and was arraigned on several counts.² On June 10, 2002, after a short visit to India, Singh applied for readmission to the United States.³ On October 2, 2002, Singh pled guilty to, and was convicted of, one count of second degree assault in violation of N.Y.P.L. § 120.05. Singh and the government now dispute whether Singh was convicted under a specific subsection of N.Y.P.L. § 120.05, and, if so, which subsection. Singh was sentenced to one day of incarceration and five years of probation on November 6, 2002.

On February 28, 2003, Singh was served with an NTA for a removal proceeding. The NTA alleged that Singh had applied for admission to the United States on June 10, 2002 as a returning lawful permanent resident. In addition, the NTA alleged that Singh was inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I)⁴ due to his November 6, 2002 conviction under N.Y.P.L. § 120.05. The NTA did not specify any subsection of N.Y.P.L. § 120.05.⁵

On May 16, 2005, the IJ held a removal hearing for Singh. During the course of the proceedings, the IJ admitted as evidence, inter alia: (1) a document entitled "Certificate of Disposition," issued by the Supreme Court of the State of New York, County of Queens, which stated that Singh had been convicted of assault in the second degree in violation of N.Y.P.L. § 120.05 on October 2, 2002; (2) a document entitled "Conditions of Probation," signed by the state court clerk and by Singh, which was dated November 6, 2002 and stated that Singh had been convicted under subsection (1) of N.Y.P.L. § 120.05; (3) Singh's "rap sheets," which had been maintained by the Division of Criminal Justice Services by the State of New York and stated that Singh had been charged with several crimes but had only been convicted under N.Y.P.L. § 120.05(1); and (4) several protection orders—entered against Singh after his arrest but prior to his conviction and signed by a different judge from the sentencing judge—that stated that Singh had been charged with violating N.Y.P.L. § 120.05(2) and did not refer to any other crime.

At the hearing before the IJ, Singh's counsel informed the IJ that he had filed a request under the Freedom of Information Act ("FOIA") to obtain documents from the government that might serve as evidence of Singh's first arrival in the United States in 1992. Singh's counsel stated that he intended to argue—if and when he received the documents—that Singh was eligible for cancellation of removal because he had "resided in the United States continuously for seven years after having been admitted in any status" prior to having committed the offense, a prerequisite to such relief. See 8 U.S.C. §§ 1229b(a)(2), (d)(1).⁶ The government objected to the request for a continuance, arguing that there would be no documentation under the name Kulwinder Singh because, as Singh testified, he had used a false name and discarded his passport upon his arrival in 1992. The IJ effectively denied the request, albeit without explanation, when he rendered his final decision and announced that Singh's final hearing was closed.

In his final decision, the IJ reviewed the evidence in the record and found that Singh had been convicted of second degree assault under N.Y.P.L. § 120.05(1). The IJ concluded that N.Y.P.L. § 120.05(1) was a crime of moral turpitude for the purpose of removal proceedings. As a result, the IJ held Singh to be inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(I) and ordered him removed. As to Singh's eligibility for cancellation of removal, the IJ concluded that there was insufficient evidence of Singh's 1992 entry into the United States to demonstrate that he was "admitted in any status," and therefore the relevant seven-year period did not begin to run until Singh was admitted as a lawful permanent resident on May 4, 1996. As Singh committed his offense less than seven years later in November 2001, the IJ concluded that Singh was not eligible for cancellation for removal. The IJ further found Singh ineligible for a waiver of inadmissibility under 8 U.S.C. § 1182(h)⁷ because the NTA was served on Singh in February 2003, which was also less than seven years after he was admitted as a permanent resident in May 1996.

Singh appealed the IJ's decision to the BIA. On November 15, 2006, the BIA affirmed the IJ's decision without opinion. This appeal timely followed.

DISCUSSION

In his petition for review, Singh argues that the IJ erred in three primary respects. First, Singh argues that the agency was precluded from finding that he was convicted under N.Y.P.L. § 120.05(1) because the NTA did not specify a subsection. Second, Singh contends that the IJ erroneously concluded that the government had shown by clear and convincing evidence that he had been convicted of a crime of moral turpitude. Third, Singh argues that the IJ exceeded his allowable discretion in refusing to adjourn the hearing to allow Singh to produce additional documents in support of cancellation of removal. We address these arguments in turn.⁸

1. Lack of Specificity in the NTA

Singh first argues that the government is "bound" by the precise allegations used in the NTA he received regarding his removal proceedings and that, absent an amendment to the NTA in writing, the IJ was precluded from finding that Singh was convicted of N.Y.P.L. § 120.05(1). He also argues that the lack of specificity in the NTA violated his Due Process rights under the Fifth Amendment to the United States Constitution. In response, the government argues that Singh has not exhausted his administrative remedies on these claims because he did not raise them before the BIA.

If Singh has failed to exhaust all of his administrative remedies, then we lack jurisdiction to review this claim. See Karaj v. Gonzales, 462 F.3d 113, 117 (2d Cir. 2006). Although Singh's brief to the BIA mentions that the NTA was "improvidently issued or at best defective or insufficient on its face," this point was part of Singh's second argument, below, that the evidence presented by the government that Singh had been convicted of a crime of moral turpitude did not rise to the level of clear and convincing. Singh's BIA brief is entirely devoid of reference to a due process violation. The reference to the NTA in his BIA brief was thus not adequate to put the BIA on notice of the impermissible amendment or due process arguments that Singh now offers. Cf. Johnson v. Ashcroft, 378 F.3d 164, 170 n. 7 (2d Cir.2004) (finding that where the substance of petitioner's argument was raised below, petitioner exhausted the claim). As a result, we conclude that Singh did not exhaust his administrative remedies on these claims in appealing the IJ's decision to the BIA, and we...