         09-3301-ag
         Singh v. Holder


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 17 th day of September, two thousand and
 5       ten.
 6
 7       PRESENT: ROGER J. MINER,
 8                PIERRE N. LEVAL,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13
14       AUNDRE PETER SINGH, also known as RICARDO SINGH, also known
15       as ANDRE SINGH,
16
17                                       Petitioner,
18
19                       -v.-                                                   09-3301-ag
20
21       ERIC H. HOLDER, JR., United States Attorney General,
22
23                                       Respondent.
24
25
26
 1   FOR PETITIONER:   NEERAJ PATEL, (Andrew Z. Lipson, on the
 2                     brief), Shearman & Sterling LLP, New
 3                     York, NY,
 4
 5   FOR RESPONDENT:   MATTHEW B. GEORGE, (John M. McAdams, on
 6                     the brief), Department of Justice,
 7                     Washington, D.C., of counsel, for Eric H.
 8                     Holder, Jr., United States Attorney
 9                     General
10
11   Appeal from the Board of Immigration Appeals.
12
13       UPON DUE CONSIDERATION, of this petition for review of

14   a Board of Immigration Appeals decision, IT IS HEREBY

15   ORDERED, ADJUDGED AND DECREED that the petition for review

16   is DENIED in part and DISMISSED in part.
17
18       Petitioner Aundre Singh (“Singh”), a native and citizen

19   of Guyana, seeks review of a July 8, 2009 decision by the

20   Board of Immigration Appeals (“BIA”) overturning an

21   Immigration Judge’s (“IJ”) decision to grant Singh a waiver

22   from deportation pursuant to § 212(c) of the Immigration and

23   Nationality Act (“INA”), 8 U.S.C. § 1182(c) (1994) (repealed

24   Sept. 30, 1996) (“§ 212(c)”).       Singh contends that the BIA

25   failed to consider sufficiently his rehabilitation and

26   hardship, among other factors.       Singh also contends that the

27   BIA violated his Fifth Amendment equal protection rights by

28   treating him differently than his brother, who received a

29   waiver from deportation pursuant to § 212(c).       We assume the


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1    parties’ familiarity with the underlying facts, the

2    procedural history, and the issues presented for review.

3        As a threshold matter, we must determine whether we

4    have jurisdiction to review the BIA’s discretionary

5    decision.   Pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), “no

6    court shall have jurisdiction to review” the Attorney

7    General’s discretionary decision to deny a § 212(c) waiver.

8    We may, however, review a petition raising “constitutional

9    claims or questions of law.”   8 U.S.C. § 1252(a)(2)(D).

10       Here, we do not have jurisdiction to consider Singh’s

11   arguments concerning the BIA’s review of his rehabilitation,

12   hardship, and other factors.   Singh’s arguments concern only

13   the BIA’s exercise of its discretion.     Accordingly, we

14   dismiss the petition as to these claims for lack of

15   jurisdiction.

16       We do, however, have jurisdiction to consider Singh’s

17   Fifth Amendment claim because he argues that the BIA

18   violated his constitutional rights.     Singh contends that

19   because the brothers' criminal histories, family ties,

20   rehabilitation, and other circumstances are all similar or

21   identical that his Fifth Amendment equal protection rights

22   were violated when the BIA declined to extend to him the



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1    relief afforded to his brother.    For substantially the

2    reasons set forth by the BIA, we are unpersuaded and dismiss

3    the petition on this claim.    As the BIA explained, Singh’s

4    case is   “clearly distinguishable from his brother’s case.”

5    Specifically, Singh played a greater role in the underlying

6    offense by recruiting his brother, helping to plan the

7    murder, and acting as the shooter.    His higher resulting

8    sentence compared to his brother reflected this greater

9    role.

10       For the foregoing reasons, the petition is DISMISSED in

11   part and DENIED in part.

12
13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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