Jasbir Singh v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-4620 & 03-3719
JASBIR SINGH,
Petitioner at No. 02-4620
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
JASBIR SINGH,
Appellant at No. 03-3719
v.
ANDREA J. QUARANTILLO, District Director, INS Newark Office;
IMMIGRATION & NATURALIZATION SERVICE;
JOHN ASHCROFT, ATTORNEY GENERAL;
MICHAEL GARCIA, Commissioner I.N.S.
Petition for Review of a Decision and Order of the Board of Immigration Appeals
(BIA No. A38-120-614) and
Appeal from the United States District Court for the District of New Jersey
D.C. Civil Action No. 03-cv-00364
(Honorable William G. Bassler)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2004

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*This case was originally submitted to the three-judge panel of Scirica, Chief Judge,
McKee and Chertoff, Circuit Judges. Judge Chertoff subsequently recused. Because the
remaining two judges agreed on the opinion and disposition of the case, it was
unnecessary to assign a third judge. Linde v. Phelps, 731 F.2d 1201 (5th Cir. 1984);
Murray v. Nat'l Broadcasting Co., 35 F.3d 45 (2nd Cir. 1994).
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Before: SCIRICA, Chief Judge, McKEE and CHERTOFF,* Circuit Judges
(Filed February 8, 2005 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Jasbir Singh seeks review of the Board of Immigration Appeal’s
(“BIA”) order affirming without opinion the order of an immigration judge (“IJ”) denying
his waiver of inadmissibility. In addition, we review Singh’s appeal of the District
Court’s order denying his petition for habeas corpus relief.
I.
A. Factual Background
Jasbir Singh is a native and citizen of India who was admitted as a lawful
permanent resident on January 9, 1983. Singh is married to a United States citizen with
whom he has two children. Singh’s mother, father, and one brother are U.S. citizens and
his other brother is a lawful permanent resident. They all reside in California. Singh has
lived primarily in New York where he worked for a construction company.

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1Beginning on March 1, 2003, INS became a part of the Department of Homeland
Security pursuant to Homeland Security Act of 2002, Pub. L. No. 107-296, 110 Stat. 2135
(Nov. 25, 2002).
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In February 1993, Singh accompanied his boss to Pakistan. Upon his return,
Immigration and Naturalization Service (INS)1 officials detained him because Singh did
not have proper documentation. At that time, Singh signed a sworn statement that he had
been involved in an alien smuggling ring. Subsequently, INS placed him in exclusion
proceedings under §212 (a)(6)(E)(I), which forbids assisting an alien from illegally
entering the U.S. In September 1993, Singh failed to appear for his exclusion hearing.
The IJ ordered in absentia that Singh be deported.
In January 1995, Singh was arrested for armed robbery. He pled guilty and
received a three year jail sentence. INS deported Singh to India in October 1998, six days
after an IJ granted Singh’s stay of deportation and motion to reopen. Singh remained in
India for three years before INS brought him back to the United States for a hearing in
September 2001. Because of Singh’s intervening conviction for armed robbery, the INS
filed an amendment to the charges against Singh to include inadmissibility under INA §
212 (a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), which denies admission to aliens who
have committed crimes of moral turpitude.

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2Before being repealed in 1997, Section 212(c) provided in pertinent part:
Aliens lawfully admitted for permanent residence who temporarily proceed
abroad voluntarily and not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of seven consecutive years,
may be admitted at the discretion of the Attorney General.
This Section applies to Singh’s case because the INS initiated proceedings against Singh
before April 1, 1997.
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Singh sought an INA § 212(c)2 waiver of inadmissibility. After a hearing, the IJ
denied Singh’s application in May 2002. Singh appealed to the BIA, which affirmed
without opinion the IJ’s order. Singh filed Motions to Reopen/Reconsider and a request
for a Stay of Deportation, all of which the BIA denied. Subsequently, Singh filed a
Petition for Review with this court on December 30, 2002.
Singh was deported to India on January 27, 2003. The day of Singh’s deportation
to India, he filed a habeas corpus petition under 28 U.S.C. § 2241. The District Court
assumed jurisdiction but dismissed Singh’s petition.
II. Petition for Review of BIA Decision without Opinion
A. Standard of Review
Although we generally review orders of the BIA, Abdulai v. Ashcroft, 239 F.3d
542, 548-49 (3d Cir. 2001), we also review IJ orders if the BIA affirms without opinion.
See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review factual
findings under a substantial evidence standard. See 8 U.S.C. § 1252 (b)(4)(B) (codifying
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). We exercise jurisdiction to review a
decision of the BIA under 8 U.S.C. § 1252 (a)(1). See Smriko v. Ashcroft, 387 F.3d 279,

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282 (3d Cir. 2004). Legal determinations are reviewed de novo. Id. (quoting Wang v.
Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004).
B. BIA Affirmance without Opinion
In Dia, we upheld the streamlining regulations permitting BIA’s to affirm without
opinion in order to facilitate the efficient handling of the exponentially increasing
immigration caseload. Dia, 353 F.3d at 235. We held that “nothing in the INA
specifically requires the BIA to explain its decisions.” Dia, 353 F.3d at 236 (quoting
Abdulai, 239 F.3d at 555). Additionally, we stated that “[n]either the Constitution nor
Congress guarantees a de novo review by the BIA, nor do they guarantee a right to a fully
reasoned opinion by the BIA.” Dia, 353 F.3d at 243 (internal citations omitted). When a
single BIA member affirms an IJ’s decision in a single sentence without an opinion, this
signifies that he or she has reviewed the IJ’s opinion and concluded the outcome is free
from reversible error. See Dia, 353 F.3d at 235-36. A single member of the BIA properly
affirms an IJ’s decision where: he or she deems the result appropriate, the issue on appeal
accords with established BIA or federal court precedent and does not require applying
precedent to a unique fact scenario, and where the factual and legal issues raised on
appeal are insignificant and do not require a three-member review. See 8 C.F.R. § 1003.1
(e)(4)(i)(2005). We review such a decision under an arbitrary and capricious standard.
Smirko, 387 F.3d at 292-94.

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In this case, the BIA’s decision to affirm without opinion was not arbitrary or
capricious. Under the standards articulated in 8 C.F.R. § 1003.1(e)(4), the record does
not compel a conclusion that the IJ erred in his decision to deny Singh’s waiver. Also,
Singh does not present any novel issues and the facts were not so substantial as to require
a three-panel review.
C. IJ’s Denial of the 212(c) Waiver of Inadmissability
We next consider the denial of Singh’s INA § 212(c) waiver of inadmissibility.
The IJ issued a final order denying Singh’s petition for a § 212 (c) waiver of exclusion
after October 30, 1996. As such, the transitional rules of IIRIRA §309 (c)(4)(E) that
govern judicial review expressly eliminated appeals of discretionary decisions under §
212 (c) of the Immigration and Nationality Act. See Kalaw v. INS, 133 F.3d 1147, 1151
(9th Cir. 1997).
We review § 212(c), 8 U.S.C. § 1182 (c) waivers of inadmissibility under an abuse
of discretion standard. Foti v. INS, 375 U.S. 217, 228 n. 15 (1963). The IJ must balance
the “adverse factors evidencing an alien’s undesirability . . . with social and humane
considerations presented in his behalf.” Tipu v. INS, 20 F.3d 580, 583 (quoting Matter of
Marin, 16 I & N Dec. 581, 584 (BIA 1978)). Factors considered include, among others,
the seriousness of the offense, any evidence of rehabilitation, the duration of an alien’s
residence, and the impact deportation will have on an alien’s family. Ponnapula v.
Ashcroft, 373 F.3d 480, 486 (3d Cir. 2004). In Tipu, we held the applicant has the burden

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to prove he merits a § 212 (c) waiver and a single adverse factor may be sufficient for
denial. Tipu, 20 F.3d at 583.
In this case, the IJ conducted a thorough review after hearing both positive and
negative factors impacting on Singh’s petition for a waiver. The IJ questioned members
of Singh’s family, considered Singh’s efforts at rehabilitation while in prison, and
considered the impact deportation would have on his immediate family. But the IJ
determined that several negative factors outweighed the positive, including: the
seriousness of Singh’s armed robbery conviction; the untruthfulness of Singh’s testimony
including changing accounts of the robbery and lack of candor about his number of
convictions; and his failure to pay taxes. We find the IJ did not abuse his discretion in
denying Singh a § 212 (c) waiver.
III. Singh’s Habeas Petition
Singh also petitions for habeas on due process grounds. His habeas claims largely
mirror his arguments regarding the petition for review of the BIA’s decision.
Specifically, Singh alleges a due process violation resulting from the IJ not correctly
weighing all relevant factors regarding the § 212(c) waiver and the BIA improperly using
the streamlining procedure. Having affirmed the BIA’s decision (in II. infra), we find no
due process violation on those grounds. Due process requires an opportunity to be heard
“at a meaningful time and in a meaningful manner.” Chong v. INS, 264 F.3d 378, 386 (3d
Cir. 2001) (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976)). Due process

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entitles an alien to “(1) factfinding based on the record made before the decisionmaker
and disclosed to him or her; (2)[] make arguments on his or her own behalf; and (3) [] the
right to an ‘individualized determination of his [or her] interests.” Abdulai v. Ashcroft,
239 F.3d 542 (3d Cir. 2001) (internal citations omitted). Singh had sufficient opportunity
to be heard and to make arguments on his behalf. Singh received several extensions to
accommodate changes in attorneys so that they could adequately represent his interests.
Additionally, Singh was provided an interpreter in his native language for several
hearings, and was given ample opportunity to explain his positions and to offer several
witnesses on his behalf. For these reasons, we will affirm.
IV.
We will affirm the order of the BIA. We will also affirm the District Court.

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