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Singh v. Sessions

United States Court of Appeals, Seventh Circuit

July 26, 2018

Sarbjit Singh, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued January 3, 2018

          Petitions for Review of an Order of the Board of Immigration Appeals. No. A075-456-846

          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 States for the second time.[1] He was first removed in 2006 based on a 2004 Indiana felony conviction for corrupt business 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 misdemeanor) 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 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 deception conviction in exchange for a guilty plea to a misdemeanor 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 immigration 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.

          I. Background

         Singh entered the United States in 1993 and was immediately placed in exclusion proceedings. He applied for asylum 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 Elkhart Superior Court agreed to vacate his felony conviction 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 ...


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