Tejbeer Singh v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEJBEER SINGH, No. 19-70906
Petitioner, Agency No. A215-666-767
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 6, 2021**
Pasadena, California
Before: KLEINFELD, NGUYEN, and LEE, Circuit Judges.
Tejbeer Singh, a native and citizen of India, challenges the Board of
Immigration Appeals’ (BIA) dismissal of his appeal of an immigration judge’s (IJ)
denial of his applications for asylum, withholding of removal, and relief under the
Convention Against Torture. He also challenges the BIA’s denial of his motion to
*
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).
remand for consideration of eligibility for voluntary departure. We have
jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part and deny it in
part.
1. The government’s failure to include the time and place of proceedings in
Singh’s putative Notice to Appear (NTA) did not deprive the IJ of jurisdiction over
Singh’s removal proceedings. See Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir.
2019). Therefore, we deny Singh’s petition to the extent he challenges the
agency’s jurisdiction.
2. Singh sufficiently exhausted his challenge to the IJ’s adverse credibility
determination because his BIA brief put the BIA on notice of this challenge. See
Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020). Yet the BIA failed to discuss any
of the reasons underpinning the IJ’s adverse credibility determination. We
therefore remand with instructions to consider whether, based upon the specific
inconsistencies and implausibilities the IJ identified, the adverse credibility finding
was clearly erroneous. See Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008)
(“[W]e do not review those parts of the IJ’s adverse credibility finding that the BIA
did not identify as ‘most significant’ and did not otherwise mention.”).
3. Singh sufficiently raised his challenge to the IJ’s past persecution finding,
see Bare, 975 F.3d at 960, yet the BIA failed to address it. Because the BIA is
“not free to ignore arguments raised by a petitioner,” we remand for the BIA to
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consider Singh’s challenge to the IJ’s past persecution finding. Sagaydak v.
Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005).
4. Under Posos-Sanchez v. Garland, Singh’s period of continuous physical
presence for purposes of post-conclusion voluntary departure did not end when the
government served the putative NTA or when the immigration court later mailed
Singh a hearing notice. 3 F.4th 1176, 1185 (9th Cir. 2021) (“[A] noncitizen builds
up physical-presence time under § 1229c(b)(1)(A) from the moment he enters the
United States until the moment he receives a single document that provides him
with all the information Congress listed in 8 U.S.C. § 1229(a)—i.e., a § 1229(a)
NTA.”) (emphasis added). We therefore remand the BIA’s denial of Singh’s
motion to remand so that the BIA can reconsider Singh’s eligibility for voluntary
departure under 8 U.S.C. § 1229c(b)(1)(A).
5. Singh argues that because the government failed to serve him with an NTA
that complied with 8 U.S.C. § 1229(a), his proceedings should be terminated. Niz-
Chavez v. Garland, 141 S. Ct. 1474 (2021), which was decided after the BIA
issued their decision in Singh’s case, may be relevant to this question. We
therefore remand for the BIA to consider in the first instance what remedy, if any,
is appropriate for the government’s failure to issue an NTA that complies with the
statute. See INS v. Orlando Ventura, 537 U.S. 12, 16 (2002) (describing the
ordinary remand rule).
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PETITION GRANTED IN PART, DENIED IN PART.1
1
The motion for a stay of removal [Dkt. No. 6] is granted. Singh’s removal
is stayed pending a decision by the BIA. Each party shall bear its own costs.
4