UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1948
GURDARSHAN SINGH,
Petitioner,
versus
PETER D. KEISLER, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A27-536-685)
Argued: September 27, 2007 Decided: November 20, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
ARGUED: Steffanie Jones Lewis, INTERNATIONAL BUSINESS LAW FIRM,
P.C., Washington, D.C., for Petitioner. Ernesto Horacio Molina,
Jr., Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Alexandru I.
Craciunescu, INTERNATIONAL BUSINESS LAW FIRM, P.C., Washington,
D.C., for Petitioner. Peter D. Keisler, Assistant Attorney
General, M. Jocelyn Lopez Wright, Assistant Director, Carol
Federighi, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gurdarshan Singh petitions this court for review of a final
order of the Board of Immigration Appeals (“BIA”) denying his
request for relief from deportation under § 212(c) of the
Immigration and Naturalization Act (“INA”). Singh challenges the
order on the grounds that the BIA abused its discretion in denying
Singh’s request for relief from deportation under § 212(c) of the
INA.1 For reasons that follow, we deny Singh’s petition.
1
Singh raises two additional claims, one of which we dismiss
and one of which we decline to reach. Singh first contends that the
Immigration Judge (“IJ”) erred in finding him removable as an
aggravated felon. We do not have jurisdiction to hear this claim,
because Singh did not appeal his deportability status to this court
in 1999. Although Singh filed a timely appeal of the IJ’s 1998
decision that he was removable from the United States as an
aggravated felon to the BIA, he did not appeal the BIA’s August 20,
1999 decision -- which remanded to the IJ for consideration of
Singh’s newly raised claim that he was eligible for deferral of
removal -- to this court. Instead, Singh waited five years before
filing a motion to reopen the question of whether he was properly
found removable. This motion to reopen cannot substitute for a
failure to file a timely appeal. We therefore dismiss for lack of
jurisdiction Singh’s claim that the IJ erred in finding him
removable as an aggravated felon.
Singh also raises an equal protection claim, on the grounds
that, if we were to determine that his “conviction did not render
him deportable, and thus ineligible for § 212(c) . . . it is
unequal treatment to deny eligibility to an alien who committed an
non-deportable crime and grant eligibility to an alien who
committed a more serious, deportable, crime.” Because we deny
Singh’s petition on independent grounds, we need not reach this
claim.
2
I.
Gurdarshan Singh, a native of India, was admitted into the
United States in November 1986 as a non-immigrant visitor and
became a lawful permanent resident in February 1992. Since entering
the United States, Singh has resided in the Washington, D.C. area,
where he has served as a spiritual leader for the Indian Sikh
community. Singh also gave piano lessons to children in the Sikh
community.
In 1996, Singh was accused of improperly touching one of his
piano students, whom he had taught from 1989 until 1991. The
alleged victim was between eleven and thirteen years of age during
the relevant time period. In January 1997, Singh pled guilty to
one count of Sexual Offense in the Fourth Degree in violation of
Article 27, § 464(C) of the Maryland Code. Recodified with new
language without substantive change as Md. Code Ann., Criminal Law
§ 3-305 (2002). On April 9, 1997, his plea was entered by the
Circuit Court for Montgomery County, Maryland. Singh was sentenced
to one year imprisonment, which was suspended, and eighteen months
probation.
In June 1997, the former Immigration and Naturalization
Service filed a Notice to Appear against Singh, stating that he was
removable (1) under 8 U.S.C. § 1227(a)(2)(E)(I), as an alien who,
after admission to the United States, was convicted of a crime of
child abuse, and (2) under 8 U.S.C. § 1227(a)(2)(A)(iii), as an
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alien who, after admission to the United States, was convicted of
an aggravated felony as defined in 8 U.S.C. § 1101(a)(43),
specifically, sexual abuse of a minor. 8 U.S.C. § 1101(a)(43)(A)
(2000).
After filing a motion for reconsideration in his state court
criminal proceedings, in August 1997, Singh was resentenced to 360
days imprisonment, which was suspended, and his plea was amended to
clarify that he was convicted of violating § 464(C)(a)(1) of the
Maryland Code, which provided that: “A person is guilty of a sexual
offense in the fourth degree if the person engages: (1) in sexual
contact with another person against the will and without the
consent of the other person . . . .”
At Singh’s initial removal hearing in October 1997, the
Immigration Judge (“IJ”) orally declared Singh removable as an
aggravated felon, and in May 1998, the IJ issued a written decision
sustaining Singh’s charge of deportability and ordering him removed
to India. In June 1998, Singh filed a motion to reconsider his
deportability status and also filed for deferral of removal under
Article 3 of the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“Torture Convention”), which prohibits the return of an individual
to a country where “substantial grounds” exist for believing that
he would be “in danger of being subject to torture.” Singh
submitted evidence that he had been subject to persecution and
4
torture in India and that he would “likely be subject to torture”
should he return to India. The IJ denied Singh’s motion to
reconsider on two grounds: first, the motion was untimely, and
second, even if the motion had been timely, Singh still stood
“convicted of an aggravated felony.” The IJ also held that she
lacked authority to adjudicate Singh’s Torture Convention claim.
On appeal, Singh again contested his deportability status and
also filed a motion to reopen -- considered by the BIA a motion to
remand -- so that he could apply for relief under the Torture
Convention. In August 1999, the BIA remanded to the IJ for
adjudication of Singh’s Torture Convention claim. Singh did not
appeal the BIA’s remand decision to this Court. On remand in
February 2000, the IJ granted Singh’s request for deferral of
removal under the Torture Convention. Singh remained in the United
States pursuant to the IJ’s order deferring removal under the
Torture Convention.
Five years later, in April 2005, Singh filed a motion to re-
open, seeking relief from deportation under former § 212(c) of the
INA. 8 U.S.C. § 1182(c), repealed by Illegal Immigration Reform
and Immigrant Responsibility Act (“IIRIRA”), Pub. L. No. 104-208,
110 Stat. 3009-597 (1996) (replacing § 212(c) with 8 U.S.C.
§ 1129(b)). The IJ denied this motion, finding that Singh was
ineligible for a § 212(c) waiver “because there is no counterpart
in the grounds of inadmissibility under § 212(a) for the aggravated
5
felony of sexual abuse of a minor.” See 8 C.F.R. § 1212.3(f)(5);
In re Blake, 23 I. & N. Dec. 722, 729 (BIA 2005) (finding that
“sexual abuse of a minor” did not have a statutory counterpart of
inadmissibility under § 212(a)), remanded by Blake v. Carbone, 489
F.3d 88, 105 (2d Cir. 2007) (remanding to the BIA for a
determination of whether the offense of “sexual abuse of a minor”
constituted a “crime of moral turpitude,” a ground of
inadmissibility under § 212(a)).
Singh filed a timely appeal with the BIA, which denied relief
on the same “statutory counterpart” ground. The BIA additionally
noted that it considered “untimely” Singh’s claim that he was not
convicted of an aggravated felony. Singh then petitioned for
review in this court.
II.
We affirm the BIA’s denial of Singh’s request for § 212(c)
discretionary relief. Because the development of and interplay
among § 212, the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), and IIRIRA is directly relevant to our appraisal of
Singh’s claim, we will preface our discussion of that claim with a
brief discussion of the legal landscape.
A.
Aliens who have committed certain crimes generally may not be
admitted to the United States. 8 U.S.C. § 1182(a)(2) (2000).
6
Section 212(a) of the INA enumerates such grounds, including the
commission of certain crimes, that render an alien “inadmissible”
to the United States. 8 U.S.C. § 1182(a). Notwithstanding § 212(a),
under former § 212(c) of the INA, the Attorney General had the
authority to grant discretionary admission to aliens who had
voluntarily left the United States, sought reentry, and were
returning to a “lawful unrelinquished domicile” of seven
consecutive years. 8 U.S.C. § 1182(c), repealed by Pub. L. No.
104-208, § 304(b), 110 Stat. 3009-597 (1996).
By its plain terms, § 212(c) discretionary relief applied only
to lawful resident aliens who were denied admission to the United
States. However, the Second Circuit in 1976 read the Attorney
General’s authority under § 212(c) to extend discretionary relief
to resident aliens who had not left the United States but were
subject to deportation for offenses that were substantially similar
to one of the grounds of inadmissibility set forth in § 212(a) of
the INA. Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976); In
Matter of Silva, 16 I. & N. Dec. 26, 30 (B.I.A. 1976) (adopting the
Second Circuit’s position in Francis).
Three statutes enacted since 1990 have narrowed the number of
aliens eligible for § 212(c) relief. First, in 1990, Congress
amended § 212(c) to exclude from eligibility for § 212(c) relief
any alien convicted of an aggravated felony who had served a term
of imprisonment of at least five years. Immigration Act of 1990,
7
Pub. L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (amending 8
U.S.C. § 1182(c) (repealed 1996)). Second, in April 1996, the
passage of AEDPA further reduced the number of aliens eligible for
§ 212(c) relief by identifying a broad range of offenses --
including aggravated felony offenses -- that would render an alien,
regardless of the length of his sentence, ineligible for § 212(c)
relief. Pub. L. No. 104-132, § 440(d), 110 Stat. 1277 (1996)
(amending 8 U.S.C. § 1182(c) (repealed 1996)). Third and finally,
in September 1996, Congress enacted IIRIRA, which repealed § 212(c)
and replaced it with 8 U.S.C. § 1229b, which gives the Attorney
General the authority to cancel removal for a very narrow class of
inadmissible or deportable aliens, but precludes such relief for
anyone “convicted of any aggravated felony.” 8 U.S.C.
§ 1229b(a)(3) (2000). In addition, § 321 of IIRIRA expanded the
definition of “aggravated felony” to include “sexual abuse of a
minor.” 8 U.S.C. § 1101(a)(43)(A). Section 321 explicitly states
that the amended definition of “aggravated felony” applies with
respect to any “conviction . . . entered before, on, or after” the
enactment date of IIRIRA -- September 30, 1996. Id.; see also INS
v. St. Cyr, 533 U.S. 289, 319 (2001); Chuang v. U.S. Attorney Gen.,
382 F.3d 1299, 1303 (11th Cir. 2004); Mohammed v. Ashcroft, 261
F.3d 1244, 1250 (11th Cir. 2001).
8
B.
Singh entered his guilty plea in January of 1997. As of April
24, 1996, AEDPA declared that aliens convicted of aggravated
felonies, regardless of the length of their sentences, were
ineligible for discretionary relief from deportation under
§ 212(c). See Pub. L. No. 104-132, § 440(d), 110 Stat. 1277
(amending 8 U.S.C. § 1182(c) (repealed 1996)); United States v.
Velasco-Medina, 305 F.3d 839, 843 (9th Cir. 2002). In addition,
IIRIRA, enacted on September 30, 1996, added “sexual abuse of a
minor” to the definition of aggravated felony.2 IIRIRA § 321,
codified as 8 U.S.C. § 1101(a)(43)(A). Section 321 of IIRIRA also
provided that its expanded definition of “aggravated felony” was to
apply “regardless of whether the conviction was entered before, on,
or after September 30, 1996.” Id.
2
The fact that Singh was sentenced to less than a year of
imprisonment, see supra at 4 (Singh sentenced to 360 days
suspended), does not affect his status as an aggravated felon under
federal law. The provision defining “sexual abuse of a minor” as an
“aggravated felony” imposes no additional requirement that the
sentence for that crime be of any particular duration in order for
the crime to qualify as an aggravated felony. 8 U.S.C.
§ 1101(a)(43)(A). Other crimes defined as “aggravated felonies”
under 8 U.S.C. § 1101(a)(43), however, do impose such a
requirement. See, e.g., 8 U.S.C. § 1101(a)(43)(F) (defining a
“crime of violence . . . for which the term of imprisonment [is] at
least one year” as an aggravated felony); id. § 1101(a)(43)(G)
(defining “a theft offense . . . or burglary offense for which the
term of imprisonment [is] at least one year” as an aggravated
felony). Thus, had Congress intended to impose a requirement that
a sentence of a year of more be imposed in order for “sexual abuse
of a minor” to be classified as an “aggravated felony,” it would
and could have done so in the definitional statute.
9
Thus Singh pled guilty in January 1997, after the enactment of
AEDPA, which made clear that § 212(c) relief was not available to
legal permanent residents convicted of an aggravated felony, and
after the enactment of § 321 of IIRIRA, which classified “sexual
abuse of a minor” as an “aggravated felony,” and which provided
that the expanded definition was to apply “regardless of whether
the conviction was entered before, on, or after” the date of
enactment of that provision. Therefore, under existing law, Singh
was both deportable and -- because the definition of “aggravated
felony” in IIRIRA applied regardless of the date of conviction --
ineligible for § 212(c) relief.
Singh relies heavily on the Supreme Court’s decision in St.
Cyr for his argument that he is entitled to § 212(c) relief. 533
U.S. 289. In St. Cyr, the Supreme Court held that the repeal of
§ 212(c) by § 304 of IIRIRA did not apply to aliens who had entered
a guilty plea prior to April 1, 1997 (IIRIRA’s effective date) and
who “would have been eligible for § 212(c) relief at the time of
their plea under the law then in effect.” Id. at 326. But the
facts of St. Cyr are distinct from those here in one very key
respect: respondent alien Enrico St. Cyr entered a guilty plea to
an aggravated felony in March of 1996, before the passage of AEDPA
§ 440(d). Id. at 293, 315. The alien in St. Cyr was “eligible for
§ 212(c) relief at the time of [his] plea under the law then in
effect.” Id. at 326. By contrast, Singh entered a guilty plea
10
after the passage of AEDPA and with full knowledge that IIRIRA
§ 321's amended definition of “aggravated felony” applied to
convictions entered before, on, or after IIRIRA’s enactment date.
In fact, the law at the time of Singh’s plea made perfectly
clear that he belonged to that class of aggravated felons who were
deportable and were ineligible for § 212(c) relief, regardless of
whether their pleas were entered before or after IIRIRA’s
enactment. And thus, Singh could not have relied upon the
possibility of § 212(c) relief when deciding to enter his plea. See
Velasco-Medina, 305 F.3d at 849-50 (noting that an alien who pled
guilty to burglary in June 1996 had no “settled expectations” of
§ 212(c) relief when “AEDPA had foreclosed § 212(c) relief for
legal permanent residents convicted of aggravated felonies” and
when the alien “would have realized that if his conviction were
recharacterized as an aggravated felony (as, in fact, it was by
IIRIRA), he would have, under AEDPA, been ineligible for
discretionary relief under § 212(c)”). “There can be little doubt
that, as a general matter, alien defendants considering whether to
enter into a plea agreement are acutely aware of the immigration
consequences of their convictions.” St. Cyr, 533 U.S. at 289, 322
(citing Magana-Pizano v. INS, 200 F.3d 603, 612 (9th Cir. 1999)
(“That an alien charged with a crime . . . would factor the
immigration consequences of conviction in deciding whether to plead
or proceed to trial is well-documented.”)).
11
As heretofore stated, Singh was fully aware of the precise
legal consequences of his plea as they pertained to his
deportability; he can assert no reliance interest similar to that
recognized in St. Cyr. See Mbea v. Gonzales, 482 F.3d 276, 281-282
(4th Cir. 2007) (noting that reliance interests -- at the time of
plea -- lie at the heart of St. Cyr); Chambers v. Reno, 307 F.3d
284, 289 (4th Cir. 2002) (same). Because Singh was plainly on
notice at the time of his plea that no § 212(c) relief would or
indeed could be forthcoming, his challenge to the BIA’s order of
removal fails. For the foregoing reasons, Singh’s petition is
DISMISSED IN PART AND DENIED IN PART.
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