Filed: Jul. 08, 2011
Latest Update: Feb. 22, 2020
Summary: 09-2763-ag Singh v. Holder BIA A075 917 719 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “S
Summary: 09-2763-ag Singh v. Holder BIA A075 917 719 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SU..
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09-2763-ag
Singh v. Holder
BIA
A075 917 719
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 8th day of July, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 PARAMJIT SINGH,
14 Petitioner,
15
16 v. 09-2763-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Genet Getachew, Brooklyn, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Leslie McKay, Assistant
27 Director; Jane T. Schaffner, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Paramjit Singh, a native and citizen of
6 India, seeks review of a June 1, 2009, decision of the BIA,
7 denying his motion to remand and affirming the July 26,
8 2007, decision of Immigration Judge (“IJ”) Annette S.
9 Elstein, denying his application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Paramjit Singh, No. A075 917 719 (B.I.A.
12 June 1, 2009), aff’g No. A075 917 719 (Immig. Ct. N.Y. City
13 July 26, 2007). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 We previously granted in part the Government’s motion
16 for summary disposition to the extent Singh challenged the
17 denial of withholding of removal. Because Singh does not
18 challenge either the agency’s pretermission of his untimely
19 asylum application or its denial of his CAT claim, the only
20 issue for review is Singh’s challenge to the BIA’s denial of
21 his motion to remand. See Yuequing Zhang, 426 F.3d 540, 545
22 n.7 (2d Cir. 2005).
23 We review the BIA’s denial of a motion to remand for
24 abuse of discretion. Li Yong Cao v. U.S. Dep’t of Justice,
2
1 421 F.3d 149, 157 (2d Cir. 2005). The BIA did not abuse its
2 discretion in denying Singh’s motion to remand, based on his
3 approved I-130 visa petition, because the IJ lacks
4 jurisdiction to adjudicate his application for adjustment of
5 status. See Brito v. Mukasey,
521 F.3d 160, 166-68 (2d Cir.
6 2008).
7 Singh relies on this Court’s decision in Sheng Gao Ni
8 v. BIA,
520 F.3d 125, 130-31 (2d Cir. 2008), to argue that
9 when an applicant files a timely motion to reopen
10 proceedings to seek adjustment of status, it is appropriate
11 to presume that he seeks “to press [his] adjustment
12 application[] before the United States Citizenship and
13 Immigration Services” (“USCIS”) rather than the IJ, such
14 that the BIA abuses its discretion in denying such a motion
15 to reopen on jurisdictional grounds. However, whereas the
16 Sheng Gao Ni petitioners specifically argued to the BIA that
17 they intended to pursue their adjustment application before
18 the USCIS, Singh explicitly moved for reopening so that the
19 IJ could conduct a new hearing. See
id. at 130. As Singh
20 conceded, the IJ could not have taken any action to
21 adjudicate his adjustment of status application. See Brito,
22 521 F.3d at 166. Furthermore, because the BIA’s decision
23 responded to the relief Singh sought—to reopen his
24 proceedings for a new hearing before the IJ–the BIA did not
3
1 abuse its discretion in denying Singh’s motion on
2 jurisdictional grounds. See Ni, 520 F.3d at 130-31; see
3 also Ke Zhen Zhao v. U.S. Dep’t of Justice,
265 F.3d 83, 93
4 (2d Cir. 2001) (explaining that an abuse of discretion may
5 be found where the BIA’s decision “provides no rational
6 explanation, inexplicably departs from established policies,
7 is devoid of any reasoning, or contains only summary or
8 conclusory statements; that is to say, where the Board has
9 acted in an arbitrary and capricious manner” (internal
10 citations omitted)).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
4
