Devinderjit Singh v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : Petition for review is DENIED, decision not for publication. Richard Allen Griffin, Circuit Judge; Bernice Bouie Donald, Circuit Judge and James L. Graham, U.S. District Judge., SDO

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0426n.06
No. 13-4079
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
DEVINDERJIT SINGH,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Jun 11, 2014
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: GRIFFIN and DONALD, Circuit Judges; GRAHAM, District Judge.

PER CURIAM. Devinderjit Singh, a native and citizen of India, petitions this Court for
review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from an
immigration judge’s (IJ) decision ordering his removal from the United States.
In 2005, Singh was admitted to the United States as the unmarried son of a lawful
permanent resident; he adjusted his status to lawful permanent resident at the time of entry.
Thereafter, in 2008, Singh entered a no-contest plea in Michigan state court to receiving and
concealing stolen property with a value of $1,000 or more but less than $20,000, in violation of
Michigan Compiled Laws section 750.535.

The Department of Homeland Security (DHS)

subsequently served Singh with a notice to appear, charging him with removability under section



The Honorable James L. Graham, Senior United States District Judge for the Southern District
of Ohio, sitting by designation.

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Singh v. Holder
237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i), as having
been convicted of a crime involving moral turpitude (CIMT) committed within five years after
admission for which a sentence of one year or longer may be imposed.
At the initial hearing before the IJ, Singh admitted the factual allegations set forth in the
notice to appear and conceded removability. The IJ continued the case at Singh’s request,
pending his attempt to obtain post-conviction relief in the Michigan state courts under Padilla v.
Kentucky, 559 U.S. 356 (2010). Singh’s motion to withdraw his no-contest plea was denied by
the trial court, and the Michigan Court of Appeals denied leave to appeal. The IJ ultimately
ordered Singh’s removal to India, stating that Singh had conceded removability and that, even
without the concession, the conviction record established a removable offense. Singh appealed
the IJ’s decision to the BIA. Dismissing the appeal, the BIA agreed with the IJ that Singh had
conceded removability and declined to address any other issues.
In support of his petition for review, Singh contends that his attorney withdrew the
concession of removability. Singh admits that his attorney conceded removability at the initial
hearing. The following exchange took place at the final hearing before the IJ:
JUDGE TO MR. CARPENTER [Singh’s Attorney]
Now my notes indicate that you’ve conceded that he’s removability [sic]
pursuant to the charge.
MR. CARPENTER TO JUDGE
I believe we admitted the allegations, but denied the ground of
removability. That’s what my notes show.
JUDGE TO MR. CARPENTER
You want to contest the ground of removability?
MR. CARPENTER TO JUDGE
We’ll leave the Government to their proofs.
MR. GOULDING [DHS’s Attorney] TO JUDGE

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My notes reflect that there was a concession on January 10th of this year,
a concession as to removability and then admission as to the allegations.
MR. CARPENTER TO JUDGE
I don’t know that it matters much. It’s a theft charge. So it’s all about the
$500 over statutory ground.
(AR 94-95). When confronted with the fact that he had conceded removability, Singh’s counsel
merely stated, “I don’t know that it matters much.” The record does not compel the conclusion
that Singh’s attorney withdrew the concession of removability. See 8 U.S.C. § 1252(b)(4)(B)
(“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary[.]”).
“In a removal proceeding, ‘petitioners are bound by the concessions of their attorneys to
the IJ unless they can show ineffective assistance of counsel or some other egregious
circumstances.’” Hanna v. Holder, 740 F.3d 379, 387 (6th Cir. 2014) (quoting Gill v. Gonzales,
127 F. App’x 860, 862-63 (6th Cir. 2005)). To establish egregious circumstances, the alien must
argue that the attorney’s concession is incorrect, and that argument must be supported by the
record. Id. at 387-88. There are two types of egregious circumstances that may justify relieving
an alien of his admissions before an IJ. First are “admissions that were the result of unreasonable
professional judgment.” Id. at 388 (quoting Matter of Velasquez, 19 I. & N. Dec. 377, 383 (BIA
1986)) (internal quotation marks omitted). Second are admissions that “would produce[ ] an
unjust result,” such as inadvertent admissions and admissions that an intervening change in law
undercuts. Id. (quoting Velasquez, 19 I. & N. Dec. at 383).
Singh argues that his attorney’s concession of removability is incorrect because Michigan
Compiled Laws section 750.535 is not categorically a CIMT and because the modified
categorical approach does not identify which portion of this divisible statute he was convicted of
violating.

Under Michigan Compiled Laws section 750.535(1), “[a] person shall not buy,
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receive, possess, conceal, or aid in the concealment of stolen, embezzled, or converted money,
goods, or property knowing, or having reason to know or reason to believe, that the money,
goods, or property is stolen, embezzled, or converted.” A violation of this statute is a felony
punishable by imprisonment for not more than five years if the property has a value of $1,000 or
more but less than $20,000. Mich. Comp. Laws § 750.535(3)(a). The amended information
tracks the statutory language, alleging that Singh “did buy, receive, possess, conceal, or aid on
[sic] the concealment of liquor and baby formula, stolen, embezzled, or converted property,
knowing or having reason to know or reason to believe that the property was stolen, embezzled,
or converted, and the value of the property was $1,000.00 or more but less than $20,000.00;
contrary to MCL 750.535(3)(a).” (AR 103).
Singh first asserts that he should not be bound by his attorney’s concession because the
above-quoted exchange among the attorneys and the IJ reflects that his attorney did not mean to
concede removability.

Singh’s attorney unequivocally conceded removability at the initial

hearing before the IJ and, when confronted with that fact, did not withdraw that concession or
otherwise indicate that the concession was mistaken: “I don’t know that it matters much.” Singh
also contends that a concession of removability would have undermined counsel’s strategy of
seeking to continue the proceedings to pursue post-conviction relief in state court.

After

conceding removability, Singh’s attorney requested a continuance to pursue post-conviction
relief, stating his intent to move for termination of the removal proceedings upon Singh’s plea to
a lesser, non-removable offense (i.e., property value below the felony threshold amount). The
record indicates that counsel’s concession of removability was a reasonable tactical decision and
was not inadvertent.

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Next, Singh contends that counsel’s concession of removability is no longer valid in light
of the Supreme Court’s intervening decisions in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013),
and Descamps v. United States, 133 S. Ct. 2276 (2013), which, he asserts, altered the agency
framework for determining whether a conviction is properly classified as a CIMT. But, as the
Supreme Court noted in Moncrieffe, the “categorical approach has a long pedigree in our
Nation’s immigration law.” 133 S. Ct. at 1685. This Court’s most recent published decision
addressing whether a crime involved moral turpitude did not cite either Moncrieffe or Descamps.
See Hanna, 740 F.3d at 389-93. Singh thus has not shown an intervening change in law
undercutting counsel’s concession of removability.
Singh has failed to demonstrate egregious circumstances to warrant relieving him from
counsel’s concession of removability. Accordingly, we deny Singh’s petition for review.

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