Singh v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 04-2000

ARAMJIT SINGH,

Petitioner,

v.

ALBERTO GONZALES,*
Attorney General of the United States,

Respondent.

On Petition for Review from a Final Order of the
Board of Immigration Appeals

Before

Torruella, Selya, and Lynch, Circuit Judges.

Christopher W. Drinan and Law Office of John K. Dvorak, P.C.
on brief for petitioner.

James E. Grimes, Attorney, Office of Immigration Litigation,
Civil Division, United States Department of Justice, Peter D.
Keisler, Assistant Attorney General, and Mary Jane Candaux, Senior
Litigation Counsel, on brief for respondent.

June 27, 2005

*
Alberto Gonzales was sworn in as Attorney General of the
United States on February 3, 2005. We have substituted him for
John Ashcroft, previous holder of that office, as the respondent.
See Fed. R. App. P. 43(c)(2).
 LYNCH, Circuit Judge. Petitioner Aramjit Singh, a native

and citizen of India, seeks review of the denial of his application

for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT) and the denial of his application

for adjustment of status under 8 U.S.C. § 1255(i). The Immigration

Judge (IJ) found that he was statutorily ineligible for adjustment

of status because he was inadmissible pursuant to 8 U.S.C.

§ 1182(a)(6)(C)(i) for having made misrepresentations of material

fact. These denials were summarily affirmed by the Board of

Immigration Appeals (BIA). We affirm and deny the petition for

review.

I.

Singh entered the United States without being admitted or

paroled on October 21, 1997. On January 20, 1998, he filed an

application for asylum, withholding of removal, and relief under

the CAT. In his application, he claimed persecution on account of

his Sikh religion and his involvement with the Akali Dal Mann

Party, a Sikh political organization.

On March 12, 1998, the Immigration and Naturalization

Service1 (INS) issued a Notice to Appear to Singh alleging that he

1
On March 1, 2003, the INS ceased to exist and its principal
functions were transferred to the Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2205
(codified as amended at 6 U.S.C. § 291(a)). We refer to the agency
as the INS throughout this opinion.

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was removable from the United States under 8 U.S.C.

§ 1182(a)(6)(A)(i), as an alien who had entered the United States

without being admitted or paroled.

Immigration hearings were held in San Francisco,

California on April 6, 1998, October 15, 1999, and May 2, 2000.

Singh conceded removability, but sought asylum, withholding of

removal, and protection under the CAT. During the October 15

hearing, Singh provided testimony and documentary evidence to

corroborate his claims. Specifically, he alleged two instances in

which he was arrested and beaten by the Indian police because of

his involvement with the Akali Dal Mann Party. He also alleged

that Indian authorities continued to seek him after he left and

that he would be harmed or killed if he returned.

The IJ determined that Singh's testimony was not

credible. She then considered the documentary evidence presented

to "determine whether they raise the level of evidence such that

the respondent's burden [of proving eligibility for asylum] will be

met." After reviewing the documents, the IJ concluded that Singh

had not met his burden, and on May 2, 2000, denied his application

for all forms of relief and ordered Singh removed to India.

On May 16, 2000, Singh timely appealed to the BIA.

During the pendency of his case, Singh had moved to Massachusetts

and received an approved I-140 form filed on his behalf by the

owner of a restaurant at which Singh was allegedly a cook. On May

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8, 2002, Singh filed a motion with the BIA seeking remand of his

case to the IJ so that he could file an application for adjustment

of status under 8 U.S.C. § 1255(i). Singh also moved for a change

of venue from San Francisco to Boston. The INS did not oppose

either motion, and on July 29, 2002, the BIA granted both motions.

An immigration hearing was held in Boston on March 28,

2003, to consider Singh's application for adjustment of status.

The Boston IJ found that Singh had provided false testimony and

information both in connection with his application for asylum

before the San Francisco IJ and adjustment of status before the

Boston IJ; he was therefore inadmissible to the United States

pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Based on this finding of

inadmissibility, the IJ denied Singh's application for adjustment

of status. See 8 U.S.C. § 1255(i) (requiring admissibility as a

prerequisite for adjustment of status relief). The Boston IJ also

reinstated the San Francisco IJ's decision denying the application

for asylum and allowed an appeal to be taken from that denial as

well as the denial of the application for adjustment of status.

Singh appealed both denials to the BIA on April 4, 2003.

On June 30, 2004, the BIA summarily affirmed both decisions without

opinion, rendering the decisions of the IJs the final agency

determinations for the purpose of appellate review. 8 C.F.R.

§ 1003.1(e)(4); see Albathani v. INS, 318 F.3d 365, 373 (1st Cir.

2003).

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 II.

This petition comes to us after the passage of the REAL

ID Act of 2005, Pub. L. 109-13, 119 Stat. 731, which alters, among

other things, this court's standard of review of certain agency

determinations and the burden of proof in asylum cases. The issues

in this case do not call for application of the different standards

under the Act. In particular, the provisions dealing with the

burden of proof in asylum cases are not applicable to this case as

Singh's petition was filed prior to the effective date of the

amendments.

Petitioner argues that neither of the IJ's conclusions

(denial of asylum and denial of adjustment of status due to

inadmissibility) is supported by substantial evidence. He also

makes a denial of due process claim as to the conduct of the IJ in

both the San Francisco and Boston hearings which we dismiss as

frivolous.2

2
As to the San Francisco immigration proceedings, the
petitioner argues that he was denied due process of law because the
IJ's decision did not consider all of the relevant and probative
evidence presented at the hearings and the IJ placed undue weight
on his demeanor during the hearing. As to the Boston immigration
proceedings, he argues that the IJ was not impartial and drew "only
the most negative conclusions" about him and that the manner in
which she stated her findings -- "in a vacuum without explaining
why she discounts the documents that the petitioner submitted" --
violated due process.
Both of petitioner's challenges are completely undermined by
the record. A review of the record makes clear that the conduct of
the IJs did not violate the petitioner's due process rights; the
petitioner received a full and fair hearing.

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Application for Asylum

The burden of proof for establishing eligibility for

asylum lies with the petitioner. See Diab v. Ashcroft, 397 F.3d

35, 39 (1st Cir. 2005); 8 C.F.R. § 1208.13(a). Applicants can meet

this burden by proving past persecution or a well-founded fear of

future persecution on account of "race, religion, nationality,

membership in a particular social group, or political opinion." 8

U.S.C § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(1). An applicant's

testimony alone, "if credible, may be sufficient to sustain the

burden of proof without corroboration," 8 C.F.R. § 1208.13(a), but

if the applicant is found not to be entirely credible,

corroborating evidence "may be used to bolster an applicant's

credibility." Diab, 397 F.3d at 39.

The San Francisco IJ determined that Singh had not met

his burden of proof based largely on her finding that his testimony

was not credible and that the corroborating documentary evidence he

offered to support his testimony conflicted with and tended to

discredit his testimony further, rather than rehabilitate it. The

petitioner disagrees and argues that the IJ's credibility finding

was not supported by substantial evidence and that he has satisfied

his burden of proof to qualify for asylum relief under 8 U.S.C.

§ 1158(b)(1).

We review factual findings and credibility determinations

made by an IJ under the deferential substantial evidence standard.

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INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Akinwande v.

Ashcroft, 380 F.3d 517, 522 (1st Cir. 2004). This means that the

IJ's determination must stand "unless any reasonable adjudicator

would be compelled to conclude to the contrary." 8 U.S.C. §

1252(b)(4)(B); see Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123

(1st Cir. 2005). As to issues of credibility, we will give great

deference to an IJ's determinations so long as the IJ provides

"specific reasons for those determinations." Awinkwande, 380 F.3d

at 522; see Syed v. Ashcroft, 389 F.3d 248, 251 (1st Cir. 2004).

There is no basis in the record to challenge the IJ's

finding. She articulated four specific reasons why Singh's

testimony was not credible, each amply supported by the record.

These reasons included the findings that Singh tended to return to

a recitation of the story contained in his application for asylum,

that he had trouble answering specific questions which did not come

directly from facts contained in the application, that he corrected

himself on several occasions, and that his testimony was internally

inconsistent and implausible. She then independently examined the

documents in the record. Those only reconfirmed the conclusion

that little of what Singh said was credible. Indeed, the record

virtually compels the conclusion that what Singh presented was far

from the truth and the untruths were deliberate.3

3
The IJ also correctly determined that the petitioner's claims
for withholding of removal and protection under the CAT failed.
Because Singh has not satisfied the more lenient asylum standard,

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Application for Adjustment of Status4

Under 8 U.S.C. § 1255(i), certain aliens who are

physically present in the United States but have not been admitted

or paroled are eligible to file an adjustment of status application

with the Attorney General's office. Upon receipt of this

application and the applicable fee, the Attorney General may adjust

the alien's status to permanent resident alien if "(A) the alien is

eligible to receive an immigrant visa and is admissible to the

United States for permanent residence; and (B) an immigrant visa is

immediately available to the alien at the time the application is

filed." 8 U.S.C. § 1255(i)(2)(emphasis added).

he also has failed to satisfy the withholding of removal standard.
See Albathani, 318 F.3d at 372. In addition, there is no credible
allegation that it is more likely than not that he would be
tortured if he returned to India; therefore, he cannot meet his
burden for protection under the CAT. See 8 C.F.R. § 1208.16(c)(2).
The United States argues that we do not have jurisdiction to
review these claims under 8 U.S.C. § 1252(d)(i) because they were
not developed before the BIA and therefore have not been exhausted.
We disagree. Singh raised these challenges before the BIA (albeit
in a perfunctory manner) and the BIA issued a summary affirmance of
the IJ's entire opinion, including her decision regarding the
claims for withholding of removal and protection under the CAT.
4
The United States correctly does not challenge our
jurisdiction to review the denial of the application for adjustment
of status under 8 U.S.C § 1252(a)(2)(B)(i). This provision limits
judicial review of discretionary denials of adjustment of status
applications. In this case, the IJ denied Singh's application
based on a finding that he did not meet the statutory prerequisite
of admissibility. This is not a discretionary denial; it is
mandated by the statute. 8 U.S.C. § 1252 does not limit our review
over these types of denials.

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 An alien, in turn, is not admissible if he "by fraud or

willfully misrepresenting a material fact, seeks to procure (or has

sought to procure or has procured) a visa, other documentation, or

admission into the United States or other benefit provided under

this chapter." Id. § 1182(a)(6)(C); see Ymeri v. Ashcroft, 387

F.3d 12, 18 (1st Cir. 2004). 8 U.S.C. § 1182(i)(1) gives the

Attorney General discretion to waive this ground of inadmissibility

in certain situations. The IJ correctly determined that Singh did

not qualify for this waiver. See Afful v. Ashcroft, 380 F.3d 1, 8

(1st Cir. 2004).

The IJ's legal conclusions as to admissibility are

reviewed de novo, giving proper deference to the BIA's

interpretation of the immigration laws. See Gailius v. INS, 147

F.3d 34, 43 (1st Cir. 1998). "[A] decision that an alien is not

eligible for admission to the United States is conclusive unless

manifestly contrary to law." 8 U.S.C. § 1252(a)(4)(C). Findings

of willful misrepresentation are reviewed under the substantial

evidence standard previously described. See Ymeri, 387 F.3d at 18.

As Singh has not been admitted into this country, he bears the

burden of proving that he is not inadmissible under 8 U.S.C. §

1182. See 8 U.S.C. § 1229a(c)(2)(A); Ymeri, 387 F.3d at 17.

During the March 28, 2003 hearing, the Boston IJ found

the following:

[Singh] provided false information at the time
he applied for asylum. He provided false

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 information again to the Immigration Judge in
sworn testimony on October 15, 1999. He has
apparently, in my view, proffered once again,
documents [which] were simply tailored to his
receiving benefits here in the United States.
I believe that he has provided false
information not only in his asylum
application, but in connection with labor
certification, in connection with the I-140,
[and] in connection with his I-485 before this
court.

In a written decision she further explained her position stating,

I believe [Singh] has failed to establish
eligibility for any form of relief before this
Court insofar as I do not believe the document
that he submitted indicating that he worked as
a cook. I do not believe [his] testimony
before this Court that he has been working as
a cook here in Cambridge. I do not believe
that the respondent testified truthfully
before the Court in San Francisco.

The IJ also found that these intentional misrepresentations were

made in an effort to receive the immigration benefits of asylum and

adjustment of status in violation of 8 U.S.C. § 1182(a)(6)(C).

Petitioner argues that the Boston IJ's finding of willful

misrepresentation was not supported by substantial evidence because

the San Francisco IJ did not expressly find he made a willful

misrepresentation. Although a negative credibility finding alone

is not the equivalent of a finding of willful misrepresentation and

the one does not necessarily lead to the other, here, the Boston IJ

correctly read the San Francisco IJ's lack of credibility finding

as resting on deliberate falsification. More than that, the Boston

IJ made her own findings that petitioner had lied in connection

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with his application for adjustment of status and on his employment

certification form. We have reviewed the record and see no reason

to detail each of his numerous incidents of deceit. He lied and

did so repeatedly; that sealed his fate on admissibility. Being

inadmissible, he was not eligible for adjustment of status.

We affirm the denial of his various petitions.

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