Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-9-2008

Singh v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4412




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 06-4412
                                  ____________

                                 JAGSIR SINGH,

                                       Petitioner

                                         v.

                           ATTORNEY GENERAL OF
                            THE UNITED STATES,

                                      Respondent
                                  ____________

                          On Petition for Review from an
                     Order of the Board of Immigration Appeals
                             (Board No. A93-457-029)
                        Immigration Judge: Mirlande Tadal
                                   ____________

                    Submitted Under Third Circuit LAR 34.1(a)
                                 April 18, 2008

        Before: SCIRICA, Chief Judge, AMBRO and FISHER, Circuit Judges.

                               (Filed: July 9, 2008)
                                   ____________

                            OPINION OF THE COURT
                                 ____________

FISHER, Circuit Judge.
       Jagsir Singh is a native and citizen of India. He petitions for review of a final

order of the Board of Immigration Appeals (BIA) affirming the decision of an

Immigration Judge (IJ) denying him reentry into the United States and ordering his

removal. The main issue before us is whether Singh possessed valid documentation

precluding his removal. Because we conclude that Singh was not in possession of such

documents, we will deny the petition for review.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       After living in the United States for several years, on September 25, 2005, Singh

filed an Application for Status as a Temporary Resident (Form I-687) under the

Immigration and Nationality Act (INA) § 245A, 8 U.S.C. § 1255a. On November 9,

2005, the Department of Homeland Security (DHS) issued Singh an authorization for

advance parole (Form I-512), which conditionally allowed him reentry into the United

States to pursue his Form I-687. Six days later, DHS sent a letter to Singh’s attorney

notifying him of its intent to deny Singh’s Form I-687 if additional documentation

required by INA § 245A was not presented within 30 days. Receiving no response from

Singh, DHS sent a Notice of Decision to Singh’s attorney on January 30, 2006 denying

Singh’s Form I-687 application, which stated, inter alia: “Any Employment



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Authorization Documents and/or I-512 Travel Documents already approved based upon

your pending I-687 application are hereby revoked.”

       Apparently believing that his Form I-512 remained in effect, Singh left the United

States and went back to India on February 15, 2006. Upon his return on April 15, 2006,

DHS initiated removal proceedings against him by issuing a Notice to Appear (NTA),

charging him as inadmissable under INA § 212(a)(7)(A)(i)(I), 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), for failing to produce valid entry documentation. According to

Singh, he filed a motion to “reopen” his Form I-687 with DHS, though exactly when he

filed it remains a mystery. See note 2, infra.

       At the removal hearing before the IJ, Singh denied DHS’s charge, claiming that

neither he nor his attorney ever received notification stating that DHS had intended to

deny his Form I-687 in November 2005 or that DHS had in fact denied it in January 2006.

However, the IJ disbelieved Singh and ruled that the denial automatically voided his

employment authorization and travel documents, thereby subjecting him to removal.

Singh appealed to the BIA, which affirmed. Singh’s timely petition for review followed.1

                                             II.

       We uphold the BIA’s factual findings unless the evidence compels a contrary

conclusion. Abdille v. Ashcroft, 

, 483-84 (3d Cir. 2001) (citing INS v. Elias-


       1
        On January 31, 2007, we issued an order that, inter alia, denied Singh’s motion to
compel DHS’s submission of a full and complete administrative record. Insofar as Singh
reasserts that argument in his merits brief, we will not revisit it.

                                                 3
Zacarias, 

, 481 & n.1 (1992)). “[W]e review the BIA’s legal determinations

de novo, subject to established principles of deference.” Wang v. Ashcroft, 

,

349 (3d Cir. 2004).

       Addressing each of Singh’s arguments, we first reject the argument that he

possessed valid reentry documents. Because DHS’s January 30, 2006 Notice of Decision

denied Singh’s Form I-687 application before he departed the United States for India, the

regulations excusing valid reentry documentation are inapplicable because they apply

only to applications that are then pending. See 8 C.F.R. § 245a.2(k)(1). None of the

Legal Immigration and Family Equity Act (LIFE Act) provisions that Singh cites changes

that result. See 

(protecting applicants only “until a final determination on

his or her application has been made”); 

(protecting only applicants who

“[t]ravel while the application is pending”). Further, although the temporary resident

status regulations do not squarely answer this question, the regulations covering

applications for permanent resident status state that “[i]f the adjustment application of an

individual granted advance parole is subsequently denied the individual will be treated as

an applicant for admission, and subject to the provisions of section 212 and 235 of the

[INA].” 

accord 

Therefore, we do not

believe that Singh may resort to DHS’s November 5, 2005 advance parole authorization

to trump its subsequent letter of intent to deny his application for temporary resident

status and the actual Notice of Decision to deny.



                                              4
       This is especially true when substantial evidence shows that Singh’s attorney

received these subsequent notices before Singh departed for India on February 15, 2006.

See Bejar v. Ashcroft, 

, 131 (3d Cir. 2003) (“[T]he regulations make clear

that when an alien is represented, service on the alien’s attorney constitutes notice to the

alien.”). In sum, once DHS sent his attorney its January 30, 2006 Notice of Decision,

(1) Singh’s Form I-687 application was no longer “pending”; (2) Singh became subject to

INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), anew; and (3) Singh could no

longer rely on the revoked Form I-512 as a valid entry document.

       Second, with respect to his alleged motion to reopen, even assuming arguendo that

Singh did in fact file such a motion, it would not have altered his status. Unlike motions

to reopen filed with the BIA or the IJ, a motion to reopen a Form I-687 denial filed with

DHS cannot be considered. 8 C.F.R. § 245a.2(q) (“Motions to reopen a proceeding or

reconsider a decision shall not be considered under this part.”).2

       Finally, we reject Singh’s various due process-type arguments. Even assuming

arguendo that Form I-512 must provide a warning to the alien that he would be subject to

removal if his Form I-687 application is denied before he departs, we find that the




       2
        Singh also claims that the NTA constituted selective prosecution. We find no
factual basis whatsoever for this argument. Indeed, Singh’s brief states that DHS “should
have refrained to issue the [NTA] as to do so would be improvident as the Petitioner’s
motion to reopen had been filed . . . .” But this statement is contradicted by Singh’s
attorney’s testimony before the IJ that he filed the motion to reopen on May 8, 2006,
which was after the NTA’s date of April 15, 2006.

                                              5
authorization issued in this case sufficiently warned Singh that “if you are excludable

under any part of section 212(a) of the [INA] whose provisions may not be waived, you

may be ineligible for legalization and may be subject to removal proceedings and/or

expedited removal at the port-of-entry.” In addition, the IJ’s omission of Singh’s country

for removal in her written order does not render it “fundamentally flawed,” as Singh

would have been removed to the country from which his trip to the United States

originated, India. See 8 U.S.C. § 1231(b)(1)(A).

                                            III.

       Having considered all of Singh’s arguments and finding that no further discussion

is necessary, we will deny his petition for review.




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