Filed: May 23, 2016
Latest Update: Mar. 02, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2989 _ AMARNAUTH SINGH, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A041-331-273) Immigration Judge: Honorable Leo A. Finston _ Submitted Under Third Circuit L.A.R. 34.1(a) March 22, 2016 _ Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges. (Filed: 23 May 2016) _ OPINION* _ VANASKIE, Circuit
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 15-2989 _ AMARNAUTH SINGH, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A041-331-273) Immigration Judge: Honorable Leo A. Finston _ Submitted Under Third Circuit L.A.R. 34.1(a) March 22, 2016 _ Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges. (Filed: 23 May 2016) _ OPINION* _ VANASKIE, Circuit J..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-2989
_____________
AMARNAUTH SINGH,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A041-331-273)
Immigration Judge: Honorable Leo A. Finston
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 22, 2016
______________
Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges.
(Filed: 23 May 2016)
______________
OPINION*
______________
VANASKIE, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Petitioner Amarnauth Singh is removable under 8 U.S.C. § 1227(a)(2)(B)(i), as an
alien who was convicted of a controlled substance offense after admission. Singh applied
for asylum, withholding of removal, and protection under the Convention Against
Torture. In his application, Singh claimed that he will be persecuted in Guyana on the
basis of his Americanization and sexual orientation. The Immigration Judge denied
asylum and withholding of removal after determining that Singh and his witnesses did
not testify credibly about Singh’s sexual orientation. The Board of Immigration Appeals
affirmed. In his petition for review of his final order of removal, Singh challenges only
the Immigration Judge’s adverse credibility finding. Because Singh challenges only the
Immigration Judge’s credibility finding, which was a question of fact, and does not
dispute that he is removable for being convicted of a controlled substance offense, we
lack jurisdiction over this matter. See 8 U.S.C. § 1252(a)(2)(C), (D). Accordingly, we
will dismiss the petition for review.
I.
Amarnauth Singh, a native and citizen of Guyana, was admitted into the United
States as a conditional lawful resident on April 20, 1987. The conditional basis for his
admission was removed on May 30, 1989. On January 24, 2014, Singh was convicted in
New Jersey Superior Court, Hudson County, for possession of cocaine in violation of
N.J. Stat. Ann. § 2C:35-10(a)(1). Following his conviction, the DHS commenced
removal proceedings against Singh by filing a Notice to Appear (“NTA”) in Immigration
Court. The NTA charged Singh with removability under 8 U.S.C. § 1227(a)(2)(B)(i), as
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an alien who, after his admission into the United States, was convicted under a law
relating to a controlled substance other than a single offense involving possession of
thirty or less grams of marijuana for one’s own use.
Singh appeared before an Immigration Judge (“IJ”) on January 14, 2015. Through
counsel, he admitted the factual allegations contained in the NTA.1 Singh indicated that
he wished to avoid the consequences of his conviction and would pursue an application
for asylum and withholding of removal under the Immigration and Nationality Act
(“INA”), as well as protection under the Convention Against Torture (“CAT”). Singh
submitted his application on March 16, 2015, claiming he would be mistreated in his
home country on account of his Americanization and his sexual orientation as a bisexual
or homosexual male. In support of his application, Singh submitted a personal statement,
statements from his ex-wife and his aunt, and an excerpt from a report on human rights in
Guyana.
On April 27, 2015, the IJ held a hearing and heard testimony from Singh, Singh’s
aunt, and Singh’s ex-wife. At the conclusion of the hearing, the IJ denied the application
after finding “that [Singh] and his two witnesses were not credible, with respect to the
essential element of the claim, that being that [Singh] is homosexual or bisexual.” App.
37. The IJ also determined that Singh failed to adduce any objective evidence to support
1
Singh also acknowledged that he was ineligible to seek cancellation of removal
under the INA because he was previously granted cancellation of removal on January 28,
2008. See 8 U.S.C. § 1229b(c)(6) (explaining that aliens are ineligible for cancellation of
removal after their removal has previously been cancelled).
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his subjective fear of being persecuted due to his Americanization. App. 39. Singh
appealed the IJ’s decision to the Board of Immigration Appeals (the “Board”). On July
30, 2015, the Board dismissed Singh’s appeal, finding no clear error in the IJ’s
determination that Singh did not present credible testimony in support of his claim
because the IJ “identified specific, cogent inconsistencies in [Singh’s] internal testimony
as well as inconsistencies between his testimony and that of his witnesses.” App. 3
(citing, inter alia, Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004)).
This petition for review followed.
II.
The Government argues that we lack jurisdiction over this petition for review.
“We review questions of our own jurisdiction de novo.” Castro v. Att’y Gen. of the U.S.,
671 F.3d 356, 364 (3d Cir. 2012). We have previously held that “we lack jurisdiction to
review factual findings underlying a removal order against an alien who has committed a
controlled substance offense.” Green v. Att’y Gen. of the U.S.,
694 F.3d 503, 506 (3d
Cir. 2012) (citation omitted). 2 Here, Singh does not dispute, and did not dispute on
administrative appeal, the finding that he is removable under 8 U.S.C. § 1227(a)(2)(B)(i),
for violating a law relating to a controlled substance. As a result, our jurisdiction is
2
Generally, we have jurisdiction to review the Board’s final order denying relief
under 8 U.S.C. § 1252(a)(1). Even so, in cases involving certain categories of criminal
aliens—including aliens, like Singh, who are removable due to controlled substance
offenses under 8 U.S.C. § 1227(a)(2)(B)—Congress has directed that “no court shall have
jurisdiction to review any final order of removal.” 8 U.S.C. § 1252(a)(2)(C).
4
restricted pursuant to 8 U.S.C. § 1252(a)(2)(C), such that we cannot review the factual
findings underlying Singh’s removal order.
Because we cannot review the factual findings underlying the removal order, our
review is limited to “constitutional claims or questions of law[.]” 8 U.S.C. §
1252(a)(2)(D). “Recognizing this statutory limitation, we have repeatedly stated that
‘[w]e do not have jurisdiction to ascertain whether [a] factual finding was supported by
substantial evidence.’” Green, 694 F.3d at 507 (quoting Santos–Reyes v. Att’y Gen. of
the U.S.,
660 F.3d 196, 200 (3d Cir. 2011)). Notably, we have held that “credibility
determinations are factual matters” and “reversible only if ‘any reasonable adjudicator
would be compelled to conclude to the contrary.” Jishiashvili v. Att’y Gen. of the U.S.,
402 F.3d 386, 392 (3d Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Here, Singh challenges only the IJ’s credibility determination with respect to his
ex-wife’s testimony, which is a factual matter; he does not raise a constitutional claim or
a question of law. Cf. Kamara v. Att’y Gen. of the U.S., 420 F.3d 202, 211 (3d Cir.
2005) (explaining we retain jurisdiction to review “issues of application of law to fact,”
but only “where the facts are undisputed and not the subject of challenge” (emphasis
added) (quoting Bakhritger v. Elwood,
360 F.3d 414, 420 (3d Cir. 2014))). Because
Singh’s challenge to the adverse credibility finding is a question of fact, we lack
jurisdiction to review it under 8 U.S.C. § 1252(a)(2)(C) and (D). Accordingly, we will
dismiss this petition for review for lack of jurisdiction.
III.
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For the reasons set forth herein, we will dismiss the petition for review.
6
