Sarbjit Singh v. Jefferson B. Sessions III

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.