NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASPAL SINGH SANDHU, No. 17-72635
Petitioner, Agency No. A077-839-921
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 7, 2020**
San Francisco, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and HILLMAN,***
District Judge.
Petitioner Jaspal Singh Sandhu, a native and citizen of India, seeks review of
a decision of the Board of Immigration Appeals (“BIA”) affirming an Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
Judge’s (“IJ”) decision terminating Sandhu’s asylum status on account of fraud in
his application and ordering him removed. We have jurisdiction under 8 U.S.C.
§ 1252. We review for abuse of discretion the agency’s grant of a motion to
reopen, review for substantial evidence its factual findings, and review de novo
questions of law. See Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.
2005). We deny the petition for review.
We lack jurisdiction to consider Sandhu’s argument that the IJ did not
follow the required procedures before reopening the removal proceedings because
Sandhu did not exhaust the argument before the agency. See Szonyi v. Barr, 942
F.3d 874, 891 (9th Cir. 2019); 8 U.S.C. § 1252(d)(1).
In the reopened proceedings, the IJ did not err in admitting into evidence a
report prepared by a DHS investigator detailing his conclusion that Sandhu
submitted a fraudulent medical letter in support of his asylum application. “‘[T]he
sole test for admission of evidence’ in immigration proceedings ‘is whether the
evidence is probative and its admission is fundamentally fair.’” Go v. Holder, 640
F.3d 1047, 1055 (9th Cir. 2011) (quoting Rojas-Garcia v. Ashcroft, 339 F.3d 814,
823 (9th Cir. 2003)). Here, the investigator’s report is probative as to whether
Sandhu’s asylum application was premised on fraudulent documentary evidence,
and its admission “did not deprive [Sandhu] of a fundamentally fair proceeding”
because he “had the opportunity to cross-examine [the investigator], to present
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contrary evidence, and to impeach his testimony.”1 Id.
In light of the record evidence, including the investigator’s report and
testimony, the BIA did not err in determining that DHS had proven by a
preponderance of the evidence that there was “a showing of fraud in [Sandhu’s]
application such that he . . . was not eligible for asylum at the time it was granted.”
8 C.F.R. §§ 1208.24(a)(1), (f).
Sandhu finally argues that, having terminated his asylum status, the IJ erred
in not advising Sandhu of his “apparent eligibility” for any other form of relief
from removal, as required by 8 C.F.R. § 1240.11(a)(2). We disagree. An “IJ is not
required [under § 1240.11(a)(2)] to advise an alien of possible relief when there is
no factual basis for relief in the record.” United States v. Lopez-Velasquez, 629
F.3d 894, 900 (9th Cir. 2010) (en banc). Here, there was no factual basis in the
record indicating to the IJ that Sandhu was eligible for adjustment of status,
cancellation of removal, or voluntary departure. There was no evidence that
Sandhu was “eligible to receive an immigrant visa,” as required for adjustment of
status under 8 U.S.C. § 1255(a).2 Nor was there evidence that Sandhu had a U.S.-
citizen or lawful permanent resident “spouse, parent, or child” who would have
1
Sandhu asserts that the interpreter for the investigator actually wrote the
report, but that assertion is contradicted by the record.
2
Sandhu’s brief refers to “an approved I-130 family[-based] petition” that
would have established his eligibility for an immigrant visa, but there is no
evidence of such a petition in the record.
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suffered “exceptional and extremely unusual hardship” as a result of Sandhu’s
removal, as required for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
And Sandhu conceded in his original removal proceedings that he was not eligible
for voluntary departure because he was not “physically present in the United States
for a period of at least one year immediately preceding the date the notice to appear
was served” on him. See 8 U.S.C. 1229c(b)(1)(A).
The petition for review is DENIED.
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