NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SINDER SINGH, No. 19-72768
Petitioner, Agency No. A201-741-930
v.
MEMORANDUM*
JEFFREY A. ROSEN, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 12, 2021**
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Sinder Singh, a native and citizen of India, petitions for review of an
affirmance by an immigration judge (“IJ”) of an asylum officer’s negative credible
fear determination, see 8 U.S.C. § 1225(b)(1), and of the IJ’s subsequent denial of
Singh’s motion to reopen his credible fear proceedings. Singh argues that the IJ
*
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).
applied the wrong legal standard and violated his due process rights. We dismiss
the petition for lack of jurisdiction. See id. §§ 1252(a)(2)(A), (e).
On June 28, 2019, Singh crossed the U.S.-Mexico border without inspection
and was apprehended by Customs and Border Protection (CBP) officials. Singh
said he feared returning to India. CBP placed him in expedited removal
proceedings pursuant to 8 U.S.C. § 1225(b)(1).
An asylum officer conducted a credible fear interview in which Singh, with
the assistance of counsel, explained that he feared persecution on account of his
Sikh religion. The asylum officer found Singh credible, but determined that there
was not a significant possibility that he could establish past or future persecution in
a full hearing. See id. § 1225(b)(1)(B)(v). Singh requested review of the asylum
officer’s determination.
On September 27, 2019, Singh appeared pro se before an IJ via
videoconference. The IJ informed Singh that he had a right to consult an attorney
at his expense, but that the attorney could not participate in the hearing. See id.
§ 1225(b)(1)(B)(iv). Singh said he did not have an attorney that day and that he
agreed to proceed with his case. The IJ affirmed the asylum officer’s negative
credible fear determination and issued a final order of removal on September 27,
2019. Singh filed a motion to reopen on October 24, 2019, and a petition for
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review with this court on November 1, 2019.1
Under 8 U.S.C. §§ 1252(a)(2)(A) and 1252(e), we may not review a direct
challenge to an expedited removal order issued pursuant to 8 U.S.C. § 1225(b)(1).
Pena v. Lynch, 815 F.3d 452, 455 (9th Cir. 2016). The jurisdictional provisions in
§§ 1252(a)(2)(A) and 1252(e) also prohibit our review of an IJ’s denial of a motion
to reopen a credible fear determination. Singh v. Barr, 982 F.3d 778, 781 (9th Cir.
2020). Habeas review is available for noncitizens to challenge expedited removal
orders on three very limited bases, see 8 U.S.C. § 1252(e)(2), but Singh has not
asserted claims raising any of those grounds.2 We thus lack jurisdiction to consider
any aspect of Singh’s petition.
The fact that Singh raises constitutional claims does not alter our conclusion.
1
The petition for review of the negative credible fear determination is
untimely because it was not filed within thirty days of the IJ’s issuance of the final
order of removal. See 8 U.S.C. § 1252(b)(1). Singh also petitioned for review of
the IJ’s denial of his motion to reopen, and that petition is timely.
2
Singh is currently detained at the Stewart Detention Center in Georgia. In
March 2020, he filed a motion seeking release from custody due to health risks
posed by the potential spread of COVID-19 in immigration detention facilities.
We construed Singh’s motion as a petition for a writ of habeas corpus and
transferred it to the Middle District of Georgia. See 28 U.S.C. § 2241(b). To the
extent that Singh challenges that district court’s failure to act on his petition, we
lack jurisdiction to review that court’s treatment of his petition. See Rumsfeld v.
Padilla, 542 U.S. 426, 443 (2004) (holding that jurisdiction under § 2241(b) lies
only in the district of confinement); cf. 28 U.S.C. § 2253(a) (stating that final
orders in habeas proceedings shall be subject to review by the court of appeals for
the circuit “in which the proceeding is held”).
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In the expedited removal context, our court has previously observed that “a litigant
may be unconstitutionally denied a forum when there is absolutely no avenue for
judicial review of a colorable claim of constitutional deprivation.” Pena, 815 F.3d
at 456 (citing Webster v. Doe, 486 U.S. 592, 603 (1988)). Subsequent to our
decision in Pena, the Supreme Court held that, as applied to a petitioner in
expedited removal proceedings, § 1252(e) did not violate the Suspension Clause or
the Due Process Clause by “precluding judicial review of [the petitioner’s]
allegedly flawed credible-fear proceeding.” DHS v. Thuraissigiam, 140 S. Ct.
1959, 1971, 1981-83 (2020). We need not decide the extent to which Pena’s
notion of colorable constitutional claims survived the Court’s decision in
Thuraissigiam because Singh has not raised a colorable constitutional claim.
Singh’s premise for his asserted constitutional claim is that he never waived
his “statutory right to counsel.” This is a false premise because § 1225(b)(1) states
only that a noncitizen in credible fear proceedings “may consult with a person or
persons of [his] choosing prior to the interview or any review thereof. . . at no
expense to the Government.” 8 U.S.C. § 1225(b)(1)(B)(iv); see also 8 C.F.R.
§ 1003.42(c) (“The alien may consult with a person or persons of the alien’s
choosing prior to the review.”). As Singh correctly states, we have held that the
plain language in 8 U.S.C. § 1228 provides a right to counsel in reasonable fear
proceedings, see Zuniga v. Barr, 946 F.3d 464, 465 (9th Cir. 2019), but the statute
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governing reasonable fear proceedings is not applicable here. The IJ properly
informed Singh of his right to consult with someone outside of his proceedings,
and nothing more was required.
Because we lack jurisdiction, we dismiss the petition.
PETITION FOR REVIEW DISMISSED.
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