                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-3-2006

Singh v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-4261




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                                               PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                          No. 04-4261


                    BHUPINDER SINGH,

                                         Petitioner

                               v.

        ALBERTO R. GONZALES,1 Attorney General
     of the United States; BUREAU OF IMMIGRATION
    & CUSTOMS ENFORCEMENT; KENT FREDERICK,
             District Director, Philadelphia District
            Immigration and Customs Enforcement

                                         Respondents


                 On Petition for Review from
            the United States Department of Justice
                Board of Immigration Appeals
                    (BIA No. A47 019 972)


                   Argued December 5, 2005

   Before: RENDELL, FISHER, and VAN ANTWERPEN,
                    Circuit Judges.

                    (Filed: January 3, 2006)

Christine J. Sabas (Argued)


   1
     Alberto R. Gonzales is substituted for his predecessor, John
Ashcroft, as Attorney General of the United States, pursuant to
Fed. R. App. P. 43(c)(2).
27 North Fifth Street
Lewisburg, PA 17837

Counsel for Petitioner

Peter Keisler, Assistant Attorney General, Civil Division
Mary Jane Candaux, Senior Litigation Counsel
Melissa Neiman-Kelting, Attorney (Argued)
Office of Immigration Litigation
United States Department of Justice
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

Counsel for Respondent


                  OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

        Petitioner, Mr. Bhupinder Singh, seeks review of the
decision of the Board of Immigration Appeals (“BIA”)
determining that he is removable as an aggravated felon under 8
U.S.C. § 1227(a)(2)(A)(iii), and a subsequent BIA decision
affirming without opinion the denial by the Immigration Judge
(“IJ”) of his claims for withholding of removal and protection
under the Convention Against Torture (“CAT”). We will deny
the petition.

                               I.

       Singh is a native and citizen of India who immigrated to
the United States in 1999, and obtained lawful permanent
resident status. On January 30, 2001, Singh was driving in
Lancaster County, Pennsylvania. When another motorist made
an obscene gesture at him, he responded by pointing a BB gun at
the driver. Local police pulled him over and arrested him based
on the incident. He was charged, in relevant part, with simple
assault under 18 Pa. Cons. Stat. Ann. § 2701(a)(3), and
recklessly endangering another person under 18 Pa. Cons. Stat.
Ann. § 2705. On August 21, 2001, Singh pled guilty to, and was

                                1
convicted of, both offenses in the Lancaster County Court of
Common Pleas.

       As a result of these convictions, on September 15, 2001,
the then-Immigration and Naturalization Service2 (“INS”) served
Singh with a Notice to Appear charging him with removability
under sections 237(a)(2)(A)(i) and (iii) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1227(a)(2)(A)(i) & (iii).
Section 1227(a)(2)(A)(i) renders aliens removable if they have
committed certain crimes involving moral turpitude, while §
1227(a)(2)(A)(iii) provides for removal of aliens who have
committed an aggravated felony as defined in INA § 101(a)(43),
8 U.S.C. § 1101(a)(43). Singh moved to terminate his removal
proceedings on the basis that his convictions were neither crimes
of moral turpitude nor aggravated felonies. On July 23, 2003, an
IJ in Philadelphia, Pennsylvania determined that both crimes
were aggravated felonies, but neither were crimes involving
moral turpitude. The IJ denied Singh’s motion to terminate
removal proceedings and ordered him removed. He was then
placed in detention in York, Pennsylvania. Accordingly, venue
was changed to York.

       Following the change of venue, Singh received a merits
hearing at which a new IJ again determined that neither crime
involved moral turpitude, but also that neither was an aggravated
felony. The IJ accordingly terminated the removal proceedings
against Singh on October 20, 2003, whereupon the INS appealed
to the BIA. The BIA sustained the appeal on March 1, 2004,
ruling that both crimes, simple assault and recklessly
endangering another person, were aggravated felonies, thereby
again rendering Singh removable. The BIA did not enter a final
order of removal, but instead remanded the case to allow Singh
opportunity to seek relief from removal by applying for
withholding of removal and protection under the CAT.

        At his June 3, 2004 hearing before the IJ, Singh presented
his claims for withholding of removal and CAT relief. He
claimed that as an ethnic Sikh, he would face persecution upon

   2
     As of March 1, 2003, the functions of the INS were assumed
by the Bureau of Citizenship and Immigration Services. Soltane v.
United States Dept. of Justice, 381 F.3d 143, 145 n.1 (3d Cir.
2004).

                                2
return to India, and specifically, upon return to Punjab, a Sikh
state within India. Singh testified that he feared arrest and loss
of his life should he return to India, based on the fate of two
uncles who had been members of the Akali Dal, a movement
seeking an independent Sikh state. He called as a witness a third
uncle who testified that the other uncles had been arrested in
1984. This third uncle also testified that he feared for Singh’s
safety in India because Singh would be likely to support the
Akali Dal, and would be immediately recognizable as a Sikh
because of his surname. The uncle conceded that Singh’s
parents had been members of the Akali Dal, but had never been
arrested. The 2003 Country Report on India current at the time
of Singh’s hearing noted that the violence and disappearances in
Punjab during the 1990s had ended, and that while some
sporadic human rights abuses may still occur, they are sparse.

       The IJ found that Singh had not shown a clear probability
of persecution with respect to his claim for withholding of
removal, nor, regarding his claim for CAT relief, that it was
more likely than not that he would be tortured. Accordingly, the
IJ ordered him removed to India.

       On July 2, 2004, Singh filed an appeal with the BIA,3
claiming that (1) the IJ violated his Fifth Amendment right to
due process by limiting him to examining just one of the three
witnesses he sought to call, and (2) that his application for relief
from removal was denied in error. The BIA affirmed without
opinion on October 7, 2004. Singh’s petition for review in this
Court, filed on November 8, 2004, is timely. Singh has also
timely sought review of the BIA’s March 1, 2004 determination
in the Government’s appeal to the BIA that his past criminal
convictions constituted aggravated felonies, as well as the due
process and relief from removal claims he raised in his own
subsequent BIA appeal.4

   3
     This was Singh’s first appeal to the BIA in the case, though it
was the second appeal overall because the Government had
previously successfully appealed to the BIA following the October
20, 2003 ruling that he was not an aggravated felon under the INA.
   4
     This Order was not final when rendered by the BIA on March
1, 2004 because it remanded the case to allow Singh to apply for
relief from removal. It became final, and amenable to our

                                 3
                                 II.

       Under the REAL ID Act, our jurisdiction encompasses
“constitutional claims or questions of law raised upon a petition
for review.” REAL ID Act, § 106(a)(1)(A)(iii), Pub. L. No. 109-
13, 119 Stat. 231, 310 (2005), codified at 8 U.S.C. §
1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358
(3d Cir. 2005).5 This represents an enlargement of our
jurisdiction over final orders of removal issued against
aggravated felons, which, prior to enactment of REAL ID, was
proscribed by 8 U.S.C. § 1252(a)(2)(C).6 Whether Singh’s
convictions are aggravated felonies under 8 U.S.C. §
1227(a)(2)(A)(iii) presents a question of law within our subject
matter jurisdiction. Singh’s due process claims are
constitutional in nature, and within our jurisdiction under the
REAL ID Act. Finally, we have jurisdiction under 8 U.S.C. §


jurisdiction, following the BIA’s October 7, 2004 affirmance.
  5
    The Government moved on March 11, 2005 to dismiss Singh’s
petition for lack of jurisdiction. Subsequently, the REAL ID Act
was enacted on May 11, 2005, after Singh received a final
administrative order, and after he filed the present petition.
However, Congress clearly intended REAL ID § 106(a)(1)(A)(iii)
to “apply to any case ‘in which the final administrative order of
removal, deportation, or exclusion was issued before, on, or after
the date of enactment.’” Papageorgiou v. Gonzales, 413 F.3d 356,
358 (3d Cir. 2005) (quoting REAL ID Act § 106(b)). Singh’s final
order of removal was issued “before, on, or after the date of
enactment”; we therefore now have jurisdiction to consider his
petition for review, and will deny the Government’s March 11,
2005 Motion to Dismiss. Because we reach the merits of Singh’s
case, we will also deny the Government’s November 22, 2005
Motion to Vacate and Remand.
      6
     Prior to enactment of the REAL ID Act, we did have limited
“jurisdiction to determine our jurisdiction under [8 U.S.C. §
1252(a)(2)(C)] with respect to both of the predicate facts required
for application of [§ 1252(a)(2)(C)]–first, whether a petitioner is in
fact an alien, and, second, whether he or she is indeed removable
by reason of having been convicted of one of the enumerated
offenses in [§ 1252(a)(2)(C)].” Papageorgiou, 413 F.3d at 357
(citations and quotations omitted).

                                  4
1252(a)(2)(D) to consider Singh’s CAT and withholding of
removal claims to the extent they present questions of law, or of
the application of law to undisputed fact. See Kamara v. Att’y
Gen., 420 F.3d 202, 211 (3d Cir. 2005) (finding that court of
appeals had jurisdiction under REAL ID Act to review legal
determinations and application of law to fact under the CAT).

                               III.

       We first determine whether Singh is removable as an
aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii), and
conclude that he is. For purposes of the INA, 8 U.S.C. §
1101(a)(43) defines “aggravated felony” to include a wide array
of offenses; relevant to this case is subsection (F), which brings
“a crime of violence [defined in 18 U.S.C. § 16] for which the
term of imprisonment [is] at least one year” within the ambit of
the definition. In turn, 18 U.S.C. § 16 defines “crime of
violence” as:

       (a) an offense that has as an element the use,
       attempted use, or threatened use of physical force
       against the person or property of another, or

       (b) any other offense that is a felony and that, by
       its nature, involves a substantial risk that physical
       force against the person or property of another may
       be used in the course of committing the offense.

The present question is whether simple assault under 18 Pa.
Cons. Stat. Ann. § 2701(a)(3), or recklessly endangering another
person under 18 Pa. Cons. Stat. Ann. § 2705–the crimes for
which Singh was convicted–are crimes of violence within 18
U.S.C. § 16, and, therefore, aggravated felonies under the INA, 8
U.S.C. § 1101(a)(43).

       The BIA’s interpretation of 18 U.S.C. § 16 is not entitled
to deference by this Court: as a federal criminal provision
outside the INA, it lies beyond the BIA’s area of special
expertise. Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir. 2005);
Francis v. Reno, 269 F.3d 162, 168 (3d Cir. 2001). We exercise
plenary review over the BIA’s purely legal determination that
Singh’s convictions for simple assault and recklessly
endangering another person were aggravated felonies. Valansi v.

                                5
Ashcroft, 278 F.3d 203, 207 (3d Cir. 2002). With this in mind,
we turn to the Pennsylvania crimes of which Singh has been
convicted, and conclude that his conviction for simple assault
qualifies as an aggravated felony, but that his conviction for
recklessly endangering another person does not.

        As an initial matter, we note that both crimes were
misdemeanors under Pennsylvania law; thus, neither could be a
“felony” under § 16(b), which relies on the state’s grading of the
offense to determine whether it is a “felony.” Francis, 269 F.3d
at 168-70. Therefore, we consider whether either conviction was
for an offense “that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another” under § 16(a).7 The underlying facts of the conviction
are not relevant; rather, we must “look to the elements and the
nature of the offense of conviction” when determining whether it
is a crime of violence.8 Leocal v. Ashcroft, 543 U.S. 1, 11
(2004).

        To qualify as a “crime of violence” within 18 U.S.C. §
16(a), a criminal statute must require a mens rea of specific
intent to use force; mere recklessness is insufficient. Tran, 414

    7
      Under 18 U.S.C. § 16(a), it does not matter that the state
criminal code does not characterize the offense as a felony; rather,
the key inquiry is whether it “has as an element the use, attempted
use, or threatened use of physical force against the person or
property of another,” 18 U.S.C. § 16(a), and “for which the term of
imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F);
see also Francis v. Reno, 269 F.3d 162, 169 (3d Cir. 2001) (noting
that section 16(a) does not look to state grading of crime). The
parties do not dispute that Singh received a sentence of at least one
year for his convictions.
    8
       We need not reach the question we raised in an unrelated
immigration case, Singh v. Ashcroft, 383 F.3d 144, 161-62 (3d Cir.
2004); namely, whether we must look to the underlying facts of the
conviction in order to determine which portion of a disjunctively-
phrased statute afforded the basis of the judgment. Here, though
the reckless endangerment statute, 18 Pa. Cons. Stat. Ann. § 2705,
is disjunctive, we find for reasons set forth infra, section III.B, that
no aspect of it describes a crime of violence under 18 U.S.C. §
16(a).

                                   6
F.3d at 470 (citing United States v. Parson, 955 F.2d 858, 866
(3d Cir. 1992)). We have held that another section of the
Pennsylvania simple assault statute, 18 Pa. Cons. Stat. Ann. §
2701(a)(1), which states that “[a] person is guilty of assault if he
. . . attempts to cause or intentionally, knowingly or recklessly
causes bodily injury to another,” requires no more than a mens
rea of recklessness, and therefore does not describe a crime of
violence within the meaning of § 16(a). Popal v. Gonzales, 416
F.3d 249, 254-55 (3d Cir. 2005) (citing Tran, 414 F.3d at 472).
It is not dispositive that the crime may be proven by a showing
of specific intent–all that is necessary to place it outside § 16(a)
is that it could also be established with proof of a lesser mens
rea.

                                 A.

        The section of the Pennsylvania simple assault statute
under which Singh was convicted reads: “A person is guilty of
assault if he . . . attempts by physical menace to put another in
fear of imminent serious bodily injury.” 18 Pa. Cons. Stat. Ann.
§ 2701(a)(3). In contrast to our classification of § 2701(a)(1) in
Popal, § 2701(a)(3) is a crime of violence within 18 U.S.C. §
16(a) because it “has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another.” Under Pennsylvania law, simple assault as set forth in
§ 2701(a)(3) is a specific intent crime. See Commonwealth v.
Fry, 491 A.2d 843, 844 (Pa. Super. Ct. 1985) (noting that
specific intent is a necessary element under § 2701(a)(3));
Commonwealth v. Gouse, 429 A.2d 1129, 1133 n.3 (Pa. Super.
Ct. 1981) (same). The language of (a)(3) dictates this result: the
word “attempt” necessarily involves a mental state of specific
intent. It is well-established that attempt cannot be established
without a mental state of specific intent. See Knapik v. Ashcroft,
384 F.3d 84, 91 (3d Cir. 2004) (“the concept of an attempted
recklessness crime is nonsensical”); cf. Commonwealth v.
Geathers, 847 A.2d 730, 734 (Pa. Super. Ct. 2004) (holding
crime of attempted murder requires specific intent).

       Furthermore, the requirement of 18 U.S.C. § 16(a) that
the elements of a “crime of violence” include “use, attempted
use, or threatened use of physical force” plainly encompasses the
term “physical menace” in § 2701(a)(3). Under Pennsylvania
law, “physical menace” requires some physical act by the

                                 7
perpetrator intended to cause “fear of imminent serious bodily
injury” in the victim. See, e.g., Commonwealth v. Reynolds, 835
A.2d 720, 726 (Pa. Super. Ct. 2003) (pointing gun constituted
“menacing or frightening activity” that placed victims “in fear of
imminent serious bodily injury” under § 2701(a)(3));
Commonwealth v. Little, 614 A.2d 1146, 1148 (Pa. Super. Ct.
1992) (physical menace accomplished under § 2701(a)(3) where
“appellant erratically emerged from her home carrying a
shotgun, shouting and advancing from her porch” causing
officers to become fearful of imminent bodily injury). “Physical
menace” refers to physical acts committed to threaten another
with corporeal harm. An attempt to distinguish between such
acts and the concept of “the use, attempted use, or threatened use
of physical force” employed by § 16(a) would be meaningless.
We cannot reasonably conceive of a situation wherein such an
act of “physical menace,” intended to place another in fear of
imminent serious bodily injury, would not, at the very least,
constitute the attempted or threatened use of physical force
contemplated by 18 U.S.C. § 16(a).9

       Singh argues that Commonwealth v. Little, 614 A.2d 1146
(Pa. Super. Ct. 1992), and Commonwealth v. Hudgens, 582 A.2d
1352 (Pa. Super. Ct. 1990), present applications of § 2701(a)(3)
that do not involve the use of physical force, but we are unable
to agree. In Little, the defendant, responding to attempts by
officers to serve her with a foreclosure notice, several times
emerged from her house carrying a shotgun in the cradle of her
arm. 614 A.2d at 1147-48. She ordered them to leave her


  9
    Our holding in Bovkun v. Ashcroft, 283 F.3d 166, 170 (3d Cir.
2002), supports our conclusion here. In that case, we held that the
Pennsylvania crime of terroristic threats as codified at the time at
18 Pa. Cons. Stat. Ann. § 2706 (West 1998) met the 18 U.S.C. §
16(a) definition of a crime of violence. Id. We so held because §
2706 required that the perpetrator “threaten[] to commit any crime
of violence,” and could find no Pennsylvania case construing that
term that did not “have as an element ‘the use, attempted use, or
threatened use of physical force against the person or property of
another.’” Id. (quoting 18 U.S.C. § 16(a)). The present case is the
same: as discussed, we can neither find nor conceive of any
reasonable iteration of “physical menace” that would not amount
to “the use, attempted use, or threatened use of physical force.”

                                 8
property, and at one point approached within three to six feet of
an officer while carrying the gun. Id. at 1147. The officers
feared for their safety, radioed for back-up, and ultimately left,
having refrained from getting near enough to hand the papers to
the defendant. Id. The Superior Court of Pennsylvania held that
this established simple assault by physical menace under §
2701(a)(3). Id. at 1148. We cannot see how this holding helps
Singh: commanding officers to leave the premises while holding
a shotgun is a threat of force that carries a grave implication of
serious physical harm. Little does not present an instance of §
2701(a)(3) physical menace that does not also amount to a
threatened use of force under 18 U.S.C. § 16(a). Likewise,
Hudgens is of no help to Singh. There, the defendant brandished
a sword at the victim, and even touched him with it, and this
constituted “physical menace.” Hudgens, 582 A.2d at 1355.
Such a form of physical menace is, quite plainly, also a use or
threatened use of physical force under § 16(a).

        Accordingly, we hold that simple assault as defined by 18
Pa. Cons. Stat. Ann. § 2701(a)(3) requires specific intent to use,
threaten to use, or attempt to use force against an individual, and
is therefore a crime of violence within 18 U.S.C. § 16(a). Thus,
it is an aggravated felony under 8 U.S.C. § 1101(a)(43), which
defines the term as it is used in 8 U.S.C. § 1227(a)(2)(A)(iii),
rendering Singh removable.

                                B.

       In contrast, the Pennsylvania offense of recklessly
endangering another person, 18 Pa. Cons. Stat. Ann. § 2705, is
not a crime of violence within 18 U.S.C. § 16(a) because it
requires a mens rea of no more than recklessness. Section 2705
provides that “[a] person commits a misdemeanor of the second
degree if he recklessly engages in conduct which places or may
place another person in danger of death or serious bodily injury.”
(Emphasis added). As we held in Tran, crimes that require no
more than a mens rea of recklessness are not § 16 crimes of
violence.

       Nevertheless, because Singh’s conviction for simple
assault is a crime of violence under 18 U.S.C. § 16(a), it is an
aggravated felony for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii).
He therefore remains removable under that section.

                                 9
                                IV.

        Singh argues that he was denied due process because he
could not examine all the witnesses he proposed to call during
the June 3, 2004 hearing concerning his withholding of removal
and CAT claims. He also claims that he did not understand the
questions posed to him on direct examination, and that this also
denied him due process. Neither claim has merit. We exercise
plenary review over procedural due process claims. Bonhometre
v. Gonzales, 414 F.3d 442, 446 (3d Cir. 2005), petition for cert.
filed, No. 05-8015 (U.S. Oct. 13, 2005). Aliens are “entitled to a
full and fair hearing of [their] claims and a reasonable
opportunity to present evidence.” Chong v. Dist. Dir., INS, 264
F.3d 378, 386 (3d Cir. 2001). To prevail on such claims, an
alien must show substantial prejudice. Bonhometre, 414 F.3d at
448.

        Singh has shown no prejudice as a result of the alleged
shortcomings in his June 3, 2004 hearing before the IJ. He
argues that he would have presented testimony from his parents
to support his withholding and CAT claims, but nowhere
suggests that such testimony would have tended to establish past
persecution, or a fear of persecution or torture, nor that it would
have been anything other than cumulative. Regarding his claim
that he did not understand questions from counsel, the record
shows that Singh was able to convey his fear of torture and
persecution, and that the IJ understood his testimony and took it
as establishing his subjective fear. Furthermore, the record
indicates that Singh’s counsel did not object to the IJ’s
suggestion that the testimony be limited to his uncle. Nor did
Singh’s counsel raise any concerns about Singh’s testimony:
when the IJ indicated that Singh had established his subjective
fears, and would “leave it at that,” his counsel responded only
with “[t]hat’s fair.” App. 61. Singh does not point to, and we
cannot discern any prejudice in these aspects of the hearing.10

   10
       Singh claims that separation from his family in the United
States is prejudice. While we acknowledge that such a result is
indeed regrettable, it is not prejudice in the sense of affecting the
outcome of his proceeding.                See United States v.
Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002) (prejudice
entails the possibility of causing a different outcome); Kuciemba
v. INS, 92 F.3d 496, 501 (7th Cir. 1996) (same).

                                 10
Accordingly, his due process claims must fail.

                                V.

        Singh also challenges the BIA’s determination that he did
not establish his claims for withholding of removal under 8
U.S.C. § 1231(b)(3)(A) and the CAT under 8 C.F.R. §
208.16(c)(2).11 As stated in section II, supra, the REAL ID Act
grants us jurisdiction to review constitutional claims and
questions of law. 8 U.S.C. § 1252(a)(2)(D). We have also held
that this includes review of the BIA’s application of law to
undisputed fact. See Kamara, 420 F.3d at 210-11 (court of
appeals has jurisdiction after REAL ID Act to review the
application of law to undisputed fact in the CAT claim of an
alien convicted of an aggravated felony). We exercise plenary
review over the BIA’s legal determinations, affording Chevron12
deference to its reasonable interpretations of statutes it is
charged with administering. Id. at 211. The Government does
not address the merits of Singh’s claims in this respect. Singh
merely recapitulates his due process arguments, claiming an
inability to present his case. He does not question the IJ’s
determination of the law or its application to the facts of the
case. Having determined in section IV, supra, that there was no
due process violation and that the facts of his case were fairly
presented and adjudicated, we can find no argument by Singh
that the IJ erroneously determined the law or misapplied it.
Accordingly, we find that his withholding of removal and CAT
claims lack merit.

                               VI.

        For the foregoing reasons, we conclude that Singh is
removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an aggravated
felon, and that his due process rights have not been violated. His
CAT and withholding of removal claims lack merit. We will
therefore deny his petition.

  11
     We review the IJ’s decision on these issues as the decision of
the BIA, which affirmed without opinion. See Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir. 2002).
   12
     Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 842 (1984).

                                11
