Sarbjit Singh v. Jefferson B. Sessions III ( 2018 )


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  •                                      In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    Nos. 17-1579 & 17-2852
    SARBJIT SINGH,
    Petitioner,
    v.
    JEFFERSON B. SESSIONS III,
    Attorney General of the United States,
    Respondent.
    ____________________
    Petitions for Review of an Order of the
    Board of Immigration Appeals.
    No. A075-456-846
    ____________________
    ARGUED JANUARY 3, 2018 — DECIDED JULY 26, 2018
    ____________________
    Before EASTERBROOK and SYKES, Circuit Judges, and
    REAGAN, District Judge. ∗
    SYKES, Circuit Judge. Sarbjit Singh, an Indian citizen and
    lawful permanent resident, faces removal from the United
    ∗   Of the Southern District of Illinois, sitting by designation.
    2                                              Nos. 17-1579 & 17-2852
    States for the second time. 1 He was first removed in 2006
    based on a 2004 Indiana felony conviction for corrupt busi-
    ness influence. IND. CODE § 35-45-6-2. Singh reentered the
    country in 2010 to pursue postconviction relief in Indiana.
    Three weeks later a state judge vacated the conviction and
    accepted his guilty plea to the crime of deception (a misde-
    meanor) in its stead. Id. § 35-43-5-3. Singh thereafter asked
    the Board of Immigration Appeals to reopen and reconsider
    the removal order. The Board granted the motion and
    remanded the case to an immigration judge.
    A second round of removal proceedings ensued. The
    government initially conceded that the deception offense did
    not support removal and sought Singh’s removal on other
    grounds. It later changed course and issued a new charge
    alleging that Singh was removable based on the deception
    conviction, which it argued was “a crime involving moral
    turpitude … for which a sentence of one year or longer may
    be imposed.” 
    8 U.S.C. § 1227
    (a)(2)(A)(i). Singh responded
    that the government’s initial concession was binding and,
    regardless, deception is not a removable offense because it is
    not punishable by a sentence of “one year or longer.”
    The immigration judge entered a new removal order,
    reasoning that the government’s concession was not binding
    because the Department of Homeland Security has express
    regulatory authority to lodge new or additional charges in
    removal proceedings “[a]t any time.” See 
    8 C.F.R. §§ 1003.30
    ,
    1240.10(e). And because the deception offense carries a
    1 The petitioner’s first name is spelled “Sarabjit” in recent filings before
    the agency and this court. We use “Sarbjit” to remain consistent with the
    Board’s orders.
    Nos. 17-1579 & 17-2852                                       3
    possible sentence of “not more than one (1) year,” IND. CODE
    § 35-50-3-2, the judge held that it qualifies as a crime for
    which a sentence of “one year or longer may be imposed.”
    The Board affirmed the removal order.
    Meanwhile, Singh went back to state court and entered
    into an agreement with the prosecutor to vacate the decep-
    tion conviction in exchange for a guilty plea to a misde-
    meanor offense of dealing in drug paraphernalia. The state
    judge accepted the deal, and Singh returned to the Board
    with a motion to reopen and reconsider the second removal
    order. Like before, he notified the Board that the state court
    had vacated the conviction that served as the predicate for
    his removal. This time the Board denied the motion. To
    warrant reopening, Singh had the burden to show that his
    conviction was vacated based on a substantive or procedural
    defect in the underlying criminal proceedings; a conviction
    vacated for other reasons—e.g., rehabilitation or immigra-
    tion hardship—remains valid for immigration purposes. See
    In re Chavez-Martinez, 
    24 I. & N. Dec. 272
    , 274 (BIA 2007). The
    court record clearly showed that the vacatur was based on a
    plea agreement, not a substantive or procedural defect in the
    underlying conviction, so the Board held that Singh had not
    carried his burden.
    Singh seeks review of both orders, arguing first that the
    Board abused its discretion in refusing to reopen his case
    based on the vacatur of the deception conviction. In the
    alternative he argues that deception does not carry a possible
    sentence of “one year or longer” and that the government’s
    concession to that effect is binding. These arguments are
    meritless, so we deny both petitions for review.
    4                                      Nos. 17-1579 & 17-2852
    I. Background
    Singh entered the United States in 1993 and was immedi-
    ately placed in exclusion proceedings. He applied for asy-
    lum and withholding of removal, claiming that he faced
    persecution on account of his religion. An immigration judge
    denied the applications and on December 1, 1995, issued an
    exclusion order. Singh appealed to the Board of Immigration
    Appeals, but before the Board ruled, he married a
    U.S. citizen and filed for an adjustment of status and waiver
    of inadmissibility. On July 21, 2000, the Immigration and
    Naturalization Service approved the petitions and granted
    Singh permanent residency.
    Three years later Singh was arrested in Indiana and
    charged with corrupt business influence, fraud, deception,
    dealing in drug paraphernalia, and maintaining a common
    nuisance. In 2004 he pleaded guilty to corrupt business
    influence, a Class C felony under Indiana law, § 35-45-6-2,
    and the other charges were dropped.
    The Department of Homeland Security issued a Notice to
    Appear charging Singh with four grounds of removability.
    An immigration judge found him removable on two of those
    grounds: (1) he was convicted of an aggravated felony
    related to racketeering, 
    8 U.S.C. § 1227
    (a)(2)(A)(iii); and
    (2) within five years of admission, he was convicted of a
    crime involving moral turpitude with a possible sentence of
    one year or longer, § 1227(a)(2)(A)(i). The Board affirmed,
    and Singh was removed on September 21, 2006.
    On June 27, 2010, Singh was readmitted on a visitor visa
    and a nonimmigrant waiver of inadmissibility so he could
    pursue postconviction relief in Indiana state court. The
    Nos. 17-1579 & 17-2852                                     5
    Elkhart Superior Court agreed to vacate his felony convic-
    tion for corrupt business influence. In its place the judge
    accepted Singh’s guilty plea to the crime of deception, a
    misdemeanor punishable by imprisonment “for a fixed term
    of not more than one (1) year.” § 35-50-3-2. Because Singh’s
    removal order was predicated on a now vacated conviction,
    he moved the Board to reopen and reconsider his case. The
    Board granted the motion and remanded the case to the
    immigration court.
    An immigration judge presided over three years of re-
    newed proceedings as Singh attempted to regain his status
    as a lawful permanent resident. At a hearing in March 2014,
    the government lodged new charges of removability alleging
    that Singh had fraudulently procured readmission, 
    8 U.S.C. § 1227
    (a)(1)(A), and overstayed his nonimmigrant visa, 
    id.
    § 1227(a)(1)(B). The government also withdrew the previous
    charge of removability stemming from Singh’s conviction for
    corrupt business influence. In doing so the government
    erroneously conceded that the moral-turpitude provision no
    longer applied because the substituted conviction for decep-
    tion was not a crime punishable by a sentence “for one year
    or longer.” § 1227(a)(2)(A)(i).
    Nearly a year later, the government changed its position
    and issued a new charge of removability based on the decep-
    tion conviction. Additional rounds of briefing and hearings
    followed. On November 24, 2015, the immigration judge
    found Singh removable under the moral-turpitude provision
    based on the deception conviction.
    Singh appealed to the Board, arguing that (1) the gov-
    ernment’s concession regarding the deception offense should
    be treated as a binding admission, and (2) deception is not a
    6                                      Nos. 17-1579 & 17-2852
    crime for which a sentence of “one year or longer” may be
    imposed. The Board rejected these arguments and affirmed.
    First, the Board explained that the government’s mistaken
    concession was not binding because the Department of
    Homeland Security has regulatory authority to lodge new or
    additional charges in removal proceedings “[a]t any time.”
    
    8 C.F.R. §§ 1003.30
    , 1240.10(e). Second, the Board held that
    because the Indiana deception offense is punishable by a
    term of “not more than one (1) year,” § 35-50-3-2, it qualifies
    as a crime for which a sentence of “one year or longer” may
    be imposed. The Board entered this new final order on
    February 17, 2017.
    Before the Board issued its ruling, however, Singh re-
    turned to state court and negotiated an agreement with the
    prosecutor to vacate the deception conviction in exchange
    for a guilty plea to a different misdemeanor charge. The
    judge approved the deal, vacated the conviction “[b]y
    agreement of the parties,” and accepted Singh’s guilty plea
    to dealing in drug paraphernalia. IND. CODE § 35-48-4-8.5.
    Singh waited until March 17—a month after the Board issued
    its final decision—to notify the Board of this development.
    He then moved a second time to reopen and reconsider his
    case, arguing that the now-vacated deception conviction
    could no longer serve as the basis for his removal.
    This second effort to reopen the case was unsuccessful.
    Under Board precedent, an alien seeking to reopen a final
    order of removal on the basis of a vacated conviction must
    prove that the conviction was vacated because of a substan-
    tive or procedural defect. See Chavez-Martinez, 24 I. & N. Dec.
    at 274. The records Singh submitted with his motion showed
    that the state court vacated the conviction “by agreement of
    Nos. 17-1579 & 17-2852                                        7
    the parties,” not because of a defect in the underlying convic-
    tion. As such, the Board held that Singh did not carry his
    burden under Chavez-Martinez and declined to reopen the
    case.
    II. Discussion
    Singh seeks review of both the final order of removal and
    the denial of his motion to reopen. Our review of the latter is
    deferential. Relief is warranted only if the Board abused its
    discretion—that is, if its decision to deny the motion to
    reopen “was made without a rational explanation, inexplica-
    bly departed from established policies, or rested on an
    impermissible basis such as invidious discrimination against
    a particular race or group.” Victor v. Holder, 
    616 F.3d 705
    , 708
    (7th Cir. 2010) (internal quotation marks omitted). Singh’s
    challenge to the removal order raises two legal questions, so
    our review is de novo. Alvarado-Fonseca v. Holder, 
    631 F.3d 385
    , 389 (7th Cir. 2011).
    A. Motion to Reopen
    An alien who seeks to reopen a final order of removal has
    the “heavy burden” to establish the existence of new or
    previously unavailable evidence that would likely alter the
    result. INS v. Abudu, 
    485 U.S. 94
    , 110 (1988). Singh argues
    that he presented such evidence—namely, court filings
    showing that his conviction for deception, which formed the
    basis of the second removal order, was vacated after the
    Board’s decision.
    It’s not enough, however, for Singh to show that the con-
    viction was vacated. He must also show why it was vacated.
    If the state court vacated Singh’s conviction “solely on the
    basis of immigration hardships or rehabilitation, rather than
    8                                             Nos. 17-1579 & 17-2852
    on the basis of a substantive or procedural defect in the
    underlying criminal proceedings, the conviction … will
    continue to serve as a valid factual predicate for a charge of
    removability despite its vacatur.” Chavez-Martinez, 24 I. & N.
    Dec. at 273; see also In re Pickering, 
    23 I. & N. Dec. 621
    , 624
    (BIA 2003), rev’d on other grounds, 
    465 F.3d 263
     (6th Cir. 2006)
    (“If … a court vacates a conviction for reasons unrelated to
    the merits of the underlying criminal proceedings, the [alien]
    remains ‘convicted’ for immigration purposes.”). The Board
    has held that the alien—not the government—has the bur-
    den to show that the conviction was vacated based on an
    underlying substantive or procedural defect and not for
    immigration or other purposes. Chavez-Martinez, 24 I. & N.
    Dec. at 274.
    We have not yet addressed Chavez-Martinez’s allocation of
    the burden on a motion to reopen based on a vacated convic-
    tion. But Singh did not challenge the burden of proof before
    the Board and did not even cite Chavez-Martinez in his brief
    in this court. As the government notes, his failure to present
    the issue to either the Board or us means that any challenge
    to Chavez-Martinez is both unexhausted and waived.
    Chavarria-Reyes v. Lynch, 
    845 F.3d 275
    , 279 (7th Cir. 2016)
    (explaining exhaustion); Haichun Liu v. Holder, 
    692 F.3d 848
    ,
    851 (7th Cir. 2012) (explaining waiver). Given these proce-
    dural impediments, this is not a proper case for us to weigh
    in. 2
    2 There is a circuit split on the question of who bears the burden to show
    the reason for the vacatur. Compare Rumierz v. Gonzales, 
    456 F.3d 31
    , 37–39
    (1st Cir. 2006) (requiring the alien seeking reopening to show why his
    conviction was vacated), with Nath v. Gonzales, 
    467 F.3d 1185
    , 1188–89
    (9th Cir. 2006) (reaching the opposite conclusion).
    Nos. 17-1579 & 17-2852                                      9
    Singh argues instead that he presented enough evidence
    to warrant reopening his case. He submitted the following
    documents to the Board: (1) the Indiana court order vacating
    his deception conviction; (2) various court filings and orders
    related to his new drug-paraphernalia conviction; and (3) a
    copy of the Indiana Rules of Post-Conviction Remedies. The
    court record plainly shows that Singh’s deception conviction
    was vacated. Singh relies on the Indiana Rules for the propo-
    sition that an application for postconviction relief must be
    based on the merits of the underlying conviction.
    But the deception conviction wasn’t vacated as a result of
    a postconviction motion. Rather, the court record establishes
    that the conviction was vacated as a result of a plea agree-
    ment between Singh and the state prosecutor. More specifi-
    cally, on October 24, 2016, Singh and the prosecutor entered
    into a written agreement asking the court to vacate the
    deception conviction and accept Singh’s guilty plea to the
    drug-paraphernalia charge in its place. The judge approved
    the plea deal the same day, vacating the deception conviction
    “by agreement of the parties” and accepting Singh’s guilty
    plea to the paraphernalia offense. On this record it’s no
    wonder the Board held that Singh had not met his burden
    under Chavez-Martinez. No evidence shows that the vacatur
    was based on a substantive or procedural defect in the
    conviction. The Board did not abuse its discretion in denying
    Singh’s motion to reopen.
    B. Removal Order
    The Board classified the Indiana misdemeanor offense of
    deception as “a crime involving moral turpitude … for
    which a sentence of one year or longer may be imposed,” a
    predicate for removal. § 1227(a)(2)(A)(i). Singh concedes that
    10                                      Nos. 17-1579 & 17-2852
    deception is a crime involving moral turpitude. He disputes
    only the Board’s conclusion that it is a crime “for which a
    sentence of one year or longer may be imposed.”
    The statutory phrase “one year or longer” plainly en-
    compasses either a sentence of one year or a sentence of
    longer than one year. See Dominguez-Herrera v. Sessions,
    
    850 F.3d 411
    , 419 (8th Cir. 2017) (holding that a sentence that
    “shall not exceed one year” is a sentence that falls within the
    meaning of the phrase “one year or more”); Ceron v. Holder,
    
    747 F.3d 773
    , 777 (9th Cir. 2014) (holding that a sentence “not
    exceeding one year” is a sentence that likewise falls within
    the meaning of the phrase “one year or longer”). Indiana’s
    deception offense is punishable by a sentence of “not more
    than one (1) year,” § 35-50-3-2, so the crime falls squarely
    within the statutory language.
    Singh responds that the phrase “one year or longer” is
    ambiguous. For support he relies on two unpublished
    decisions of the Board interpreting the phrase in different
    ways. See In re Adeyinka, 
    2011 WL 1792662
    , at *2 (BIA Apr. 15,
    2011) (holding that only a sentence of “longer than 1 year”
    qualifies as “one year or longer”); In re Chavez-Gonzalez,
    2010 Immig. Rptr. LEXIS 4234, at *3 (BIA Aug. 30, 2010)
    (holding that a potential sentence of one year qualifies as
    “one year or longer”). He also traces the legislative history of
    the moral-turpitude provision, arguing that Congress in-
    tended it to include only felony crimes. Based on these
    supposed ambiguities, Singh asks us to apply the Rule of
    Lenity. See, e.g., Leocal v. Ashcroft, 
    543 U.S. 1
    , 11 n.8 (2004).
    Ambiguity cannot be created where none exists. Statuto-
    ry words and phrases are given their ordinary meaning, see
    Sandifer v. U.S. Steel Corp., 
    571 U.S. 220
    , 227 (2014), and when
    Nos. 17-1579 & 17-2852                                         11
    the meaning of the statutory text is clear, we do not
    “[v]entur[e] into legislative history,” In re Bronk, 
    775 F.3d 871
    ,
    876 (7th Cir. 2015). Moreover, two thinly reasoned, un-
    published Board decisions cannot obfuscate this clear statu-
    tory text.
    Singh’s backup argument is that the government is
    bound by its initial concession that deception does not carry
    a sentence of “one year or longer.” He analogizes this to a
    tactical concession by an immigration attorney on behalf of
    his client. See, e.g., Selimi v. INS, 
    312 F.3d 854
    , 860 (7th Cir.
    2002); In re Velasquez, 
    19 I. & N. Dec. 377
    , 382 (BIA 1986). The
    analogy is inapt. The Department of Homeland Security has
    express regulatory authority to lodge new or additional
    charges or factual allegations “[a]t any time” during removal
    proceedings. See 
    8 C.F.R. §§ 1003.30
    , 1240.10(e). Here the
    government did exactly what the regulation allows: it added
    new factual allegations and a new charge of removability
    while Singh’s proceedings were ongoing.
    Singh also relies on Gordon v. INS, 
    36 F.3d 249
     (2d Cir.
    1994), and Rarogal v. INS, 
    42 F.3d 570
     (9th Cir. 1994), but
    neither case advances his argument. In Gordon the court
    required the government to adhere to its agreement not to
    deport an alien until after a related case was decided. 
    36 F.3d at 251
    . In Rarogal the court determined that the immigration
    judge had abused his discretion when he ordered the re-
    moval of an alien when the government had conceded that
    he was entitled to relief. 
    42 F.3d at
    572–73. Importantly, the
    government did not change its position, lodge new charges,
    or otherwise argue for removal after making the concession.
    These cases do not restrict the government’s broad regulato-
    12                                      Nos. 17-1579 & 17-2852
    ry authority to file new or additional charges in removal
    proceedings.
    Finally, Singh maintains that the government’s authority
    to file new charges in removal proceedings is not so broad as
    to allow it “to lodge the exact same charges or allegations
    repeatedly.” He emphasizes what he sees as the inequity of
    allowing the government to file a new charge against him
    years after his case was reopened. We see no unfairness here.
    First, the regulation places no limitation on the government’s
    authority to lodge previously withdrawn charges. And the
    government’s use of its charging authority did not produce
    any case-specific unfairness. Singh was not prejudiced by the
    delay; to the contrary, in accordance with 
    8 C.F.R. § 1240.10
    (e), the immigration judge gave him a reasonable
    continuance to respond to the newly alleged ground of
    removability. The legal issue was fully and fairly aired and
    correctly decided.
    The petitions for review therefore are
    DENIED.