Harwinder Singh v. Eric Holder, Jr. , 516 F. App'x 387 ( 2013 )

Case: 11-60703 Document: 00512175945 Page: 1 Date Filed: 03/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 15, 2013
No. 11-60703
Lyle W. Cayce
Clerk
HARWINDER SINGH,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A044 669 545
Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
In 2003, Harwinder Singh, a native and citizen of citizen of India, was
charged in a notice to appear with being deportable because he had been
convicted of trafficking in marijuana. A final removal order was entered, Singh
waived his right to appeal, and he was deported in January 2004. In April 2010,
Singh illegally reentered this country, and, after a hearing on his claim for
withholding of removal and relief under the Convention Against Torture (CAT),
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-60703
an immigration judge (IJ) ordered him removed to India. The Board of
Immigration Appeals (BIA) dismissed his appeal.
Singh now petitions for review of the BIA’s opinion. He first argues that
the BIA erred in denying him deferral under the CAT because it found that he
had failed to establish that he is more likely than not to be tortured if removed
to India. The Government argues that, to the extent Singh raises a factual issue
on appeal, we lack jurisdiction to review it.
Although we generally have jurisdiction under 8 U.S.C. § 1252 to review
final orders of removal, § 1252(a)(2)(C) deprives us of jurisdiction to review a
final order of removal entered against an alien convicted of certain criminal
offenses, including drug offenses. 8 U.S.C. § 1182(a)(2). In such cases, we retain
only limited jurisdiction to review our own jurisdiction, constitutional claims, or
questions of law. Id. § 1252(a)(2)(D); see Marquez-Marquez v. Gonzales, 455 F.3d
548, 554, 560-61 (5th Cir. 2006). Among the findings of fact that we review for
substantial evidence is the conclusion that an alien is not eligible for asylum,
withholding of removal, or relief under the CAT. Zhang v. Gonzales, 432 F.3d
339, 344 (5th Cir. 2005). Thus to the extent that Singh challenges the conclusion
that he is ineligible for relief under the CAT, we lack jurisdiction to review that
claim.
Singh raises a legal argument that his due process rights were violated
when the IJ refused to admit some of his documentary evidence for being
illegible. We lack jurisdiction to review this claim because Singh did not raise
it before the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). For the
same reason, we lack jurisdiction to review Singh’s claims that he should not be
removed due to customary international law or “humanitarian asylum and/or
withholding and deferral”and that his children have a constitutional right to be
with him. See id.Singh also argues that the BIA erred in concluding that his prior offense
made him ineligible for withholding of removal and withholding under the CAT.
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No. 11-60703
He contends that the BIA erred in determining that his crime was particularly
serious under In re Y-L-, 23 I. & N. Dec. 270, 276-77 (A.G. 2002). A circuit split
exists regarding whether the determination that a crime was particularly
serious is discretionary and therefore unreviewable pursuant to § 1252(a)(2)(B).
Hakim v. Holder, 628 F.3d 151, 155 n.1 (5th Cir. 2010). Nevertheless, even for
claims involving “particularly serious crime” determinations, § 1252(a)(2)(C) still
operates to bar our review of a final order of removal unless, under §
1252(a)(2)(D), the claim is legal or constitutional in nature. See Alaka v. Att’y
Gen. of the United States, 456 F.3d 88, 102-04 (3d Cir. 2006); Solorzano-Moreno
v. Mukasey, 296 F. App’x 391, 394 (5th Cir. 2005).
Here, Singh’s claim is factual, not legal. The BIA determined in In re Y-L-
that drug trafficking crimes are presumptively particularly serious crimes
unless a petitioner demonstrates at least six enumerated criteria. 23 I. & N.
Dec. at 276-77. Under the In re Y-L- rule, if those criteria are met, the court may
consider “whether other, more unusual circumstances . . . justify departure from
the default interpretation.” Id. at 276-77. Singh argues that the BIA erred in
its application of In re -Y-L- by not considering his lack of criminal history and
criminal intent, among other factors. But this is a challenge to the BIA’s factual
determination, not a legal challenge falling under the § 1252(a)(2)(D) exception.
Cf. Alaka, 456 F.3d at 103-04 (holding that the petitioner’s argument that the
IJ erroneously classified her offense as an aggravated felony, and therefore a
crime of violence, was a question of law, reviewable under § 1252(a)(2)(D)). We
therefore lack jurisdiction over Singh’s claim under § 1252(a)(2)(C).
To the extent that Singh argues that he had no knowledge of the
marijuana and in essence repudiates his conviction, he has not shown that the
conviction has been overturned and therefore may not collaterally attack the
conviction. See Singh v. Holder, 568 F.3d 525, 528 (5th Cir. 2009).
DISMISSED FOR LACK OF JURISDICTION
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