FILED
NOT FOR PUBLICATION AUG 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GURMIT SINGH, an individual, Agency No. 09-17400
Numbers A072-691-014 & A072-482-782,
AKA Manjeet Singh, DC No. 208 cv 01901 MHM
Petitioner - Appellant,
MEMORANDUM *
v.
CHRIS VASQUEZ, in his official
Capacity as Sheriff and in-charge of Pinal
County Adult Detention Center;
KATRINA KANE, in her official capacity
as Field Office Director for Detention and
Removal Operations, Phoenix District
Office; JONATHAN SCHARFEN, in his
official capacity as Director of the
Citizenship and Immigration Services;
MICHAEL CHERTOFF, in his official
capacity as the Secretary of the United
States Department of Homeland Security;
ERIC H. HOLDER, JR., Attorney General,
in his official capacity as Attorney General
of the United States,
Respondents - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted July 19, 2011 **
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.***
Petitioner-Appellant Gurmit Singh is a native and citizen of India. He
arrived in New York City without a passport or visa in 1993. He told immigration
officials his name was Manjeet Singh and gave a false birth date because, he later
explained, he was advised to do so by the man he paid to smuggle him out of India.
Singh was paroled and ordered to appear at an exclusion hearing. Instead, Singh
traveled to California, where he applied for asylum using his true name and birth
date. Finding credible his assertion of political persecution, the Immigration and
Naturalization Service (“INS”) granted Singh asylum in 1996.
In 1999, in connection with its review of Singh’s application for adjustment
of status, the INS discovered that Singh had been ordered excluded in absentia
under the false name before the agency granted him asylum. The agency
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.
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summarily rescinded Singh’s asylum status by means of a letter, which explained
that the agency did not have jurisdiction to consider asylum applications in cases
where the applicant was already in exclusion proceedings, so that its grant of
asylum to Singh was void.
Almost a decade later, Singh was detained pending removal. He petitioned
for a writ of habeas corpus under 28 U.S.C. § 2241, arguing that the INS
terminated his asylum status without due process. The district court granted
Respondents’ motion to dismiss the petition.
The district court properly exercised jurisdiction under § 2241. Nadarajah
v. Gonzales, 443 F.3d 1069, 1075 (9th Cir. 2006). We have jurisdiction under 28
U.S.C. § 1291. We review de novo the decision to dismiss a habeas petition.
McKenzie v. Risley, 915 F.2d 1396, 1398 (9th Cir. 1990). We affirm.
1. The district court correctly found that the INS improperly rescinded
Singh’s asylum status by means of a letter. The agency should have followed the
applicable procedure, which required that “[p]rior to the termination of a grant of
asylum . . . the alien shall be given notice of intent to terminate, with the reasons
therefor, at least 30 days prior to the interview,” and “[t]he alien shall be provided
the opportunity to present evidence showing that he or she is still eligible for
asylum.” 8 C.F.R. § 208.23(c) (1999). Contrary to Respondents’ argument, these
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procedures apply even where, as here, the agency lacked jurisdiction to grant
asylum. Section 208.23(a) uses the phrase “made under the jurisdiction of” plainly
to distinguish between the termination procedures that apply when asylum was
granted by the INS and those that apply when asylum was granted by an
immigration judge. Compare 8 C.F.R. § 208.23(a) (1999) (“Termination of
Asylum by Service”) with § 208.23(e) (1999) (“Termination of asylum . . . by the
Executive Office for Immigration Review”). There is no indication that the phrase
is used to distinguish between proper and ultra vires grants of asylum by the INS.
Accordingly, the plain language of 8 C.F.R. § 208.23 required the agency to follow
the procedures set forth therein before terminating Singh’s asylum.
2. Singh’s due process claim nonetheless fails because he cannot show
prejudice – that the INS’ conduct potentially affected the outcome of the
proceedings. See Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir. 2002).
Although the parties focus on the timing of the filing of the charge of excludability
with the immigration court, the exact date is immaterial. The relevant regulation
provides that
[t]he Immigration Judge shall make a determination on such claims
[for asylum] de novo regardless of whether or not a previous
application was filed and adjudicated by an Asylum Officer prior to
the initiation of exclusion or deportation proceedings. Any previously
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filed but unadjudicated asylum application must be resubmitted by the
alien to the Immigration Judge.
8 C.F.R. § 208.2(b) (1993). Even if the charge of excludability was not filed with
the immigration court until after Singh submitted his request for asylum to the INS,
it necessarily was filed at some point before the exclusion hearing was held in
August 1993. Singh’s request for asylum was still pending at that time (in fact, it
was not decided by the INS until 1996). Accordingly, even if he submitted his
request for asylum to the INS before the charge of excludability was filed with the
immigration court, he was still required by the applicable regulations to submit his
claim for asylum to the immigration judge at his exclusion hearing. Therefore, it is
clear that the INS lacked jurisdiction over Singh’s asylum application at the time it
granted asylum. Because the agency could have reached no other conclusion, but
that it was required to terminate Singh’s asylum status, Singh was not prejudiced
by the absence of process.
We have considered Singh’s remaining arguments and find them to be
without merit. Accordingly, the judgment of the district court is
AFFIRMED.
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