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7th Circuit rejects Indiana immigrant’s appeal of removal orders

July 27, 2018

Finding arguments in his case “meritless,” the 7th Circuit Court of Appeals denied an Indiana immigrant’s petitions for review of removal orders issued by the Board of Immigration Appeals.

Sarbjit Singh was removed from the country a dozen years ago based on his 2004 guilty plea to a state court Class C felony count of corrupt business influence. In exchange for his plea to the racketeering charge, the state dropped charges of fraud, deception, dealing in drug paraphernalia and maintaining a common nuisance.

In 2010, Singh was readmitted to pursue post-conviction relief and attempted to regain lawful permanent resident status. The Elkhart Superior Court then vacated his felony conviction and accepted his reduced plea to a misdemeanor count of deception. Because his removal order was based on a now-vacated conviction, his immigration case was remanded.

At a hearing in 2014, the government lodged new removability charges, alleging Singh had fraudulently procured readmission and overstayed his nonimmigrant visa. It also withdrew the prior charge of removability, erroneously conceding that the moral turpitude provision no longer applied because Singh’s deception conviction was not punishable by a sentence of a year or longer.

About a year later, the government changed that position and issued a new removability petition on the deception conviction. An immigration judge found Singh removable based on the conviction, and the Board of Immigration Appeals agreed, issuing a new final removal order in February 2017.

Before the board ruled, though, Singh was able to negotiate an agreement with the prosecutor to plead guilty to an even lesser charge, dealing in drug paraphernalia. He unsuccessfully moved to reopen and reconsider his case, arguing the now-vacated deception conviction could no longer serve as the basis for removal.

The 7th Circuit Court of Appeals upheld the board’s final order and denied Singh’s appeal Thursday in Sarbjit Singh v. Jefferson B. Sessions III, 17-1579 & 17-2852. Judge Diane Sykes wrote for the panel that under In re Chavez-Martinez, 24 I. & N. Dec. 272, 274 (BIA 2007), a final removal order may be reopened only on a clear showing that a conviction was vacated based on a substantive or procedural defect, not a plea agreement.

“On this record it’s no wonder the Board held that Singh had not met his burden under Chavez-Martinez,” Sykes wrote. “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,” Sykes wrote.

The appellate court also didn’t buy Singh’s argument that the board erred in determining that the deception conviction was a crime for which a sentence of a year or more could be imposed, or that the phrase “one year or longer” is ambiguous. Deception is by statute punishable by a sentence of up to one year, Sykes wrote, adding, “Ambiguity cannot be created where none exists.

“ … 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,” the panel held, noting the government may bring immigration charges at any time.

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