                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 14 2010

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



RANJIT SINGH,                                    No. 06-70090

                Petitioner,                      Agency Nos. A072-372-890
                                                            A072-372-890
   v.

ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM *

                Respondent.



                       On Petition for Review of an Order of the
                           Board of Immigration Appeals

                              Submitted May 12, 2010 **
                               San Francisco, California

Before: HUG, RYMER, and McKEOWN, Circuit Judges.

        Ranjit Singh (“Singh”) seeks review of the Board of Immigration Appeals’s

(“BIA”) decision dismissing his appeal and affirming the Immigration Judge’s

(“IJ”) order of removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny

the petition.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Singh was charged as removable as an alien who, at the time of entry into

the United States, was inadmissible as an immigrant not in possession of a valid

entry document. Although Singh applied for asylum, he failed to appear for his

asylum interview. Nor did he appear at the January 2, 2004 master calendar

hearing after he was issued a Notice to Appear. The IJ terminated the proceedings

without prejudice because the Department of Homeland Security (“DHS”) failed to

establish alienage.

      The government subsequently instituted new proceedings on the same

grounds. Singh denied all the factual allegations and contested removability. To

meet its burden of establishing alienage, the government offered a copy of an

Immigrant Petition for Alien Worker (“I-140”) which listed Singh as the

beneficiary and said his place of birth was India. The IJ found that this document

was sufficient to shift the burden of proof to Singh to establish his time, place, and

manner of entry into the United States. Singh was unable to do so.

      Singh previously indicated that he would apply for asylum, withholding of

removal, and relief under the Convention Against Torture. However, at a hearing

held for that purpose, Singh declined to apply for relief and instead denied the

factual allegations in the Notice to Appear. Taking note of this fact, the IJ




                                           2
concluded that Singh’s original asylum application was deemed abandoned and

Singh was ordered removed to India.

      Singh appealed to the BIA, arguing that he was denied full and fair

proceedings because the original hearing—in which he did not appear—was not

recorded. He also argued that the DHS could not initiate new proceedings based

on the same factual allegations as the original proceedings. Finally, he claimed

that the I-140 form did not establish alienage by clear and convincing evidence.1

The BIA dismissed the appeal.

      We review de novo claims of due process violations in deportation

proceedings as well as the BIA’s determination of purely legal questions.

Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). “Factual findings by the

BIA are conclusive if supported by reasonable, substantial, and probative evidence

on the record considered as a whole.” Molina-Estrada v. INS, 293 F.3d 1089, 1093

(9th Cir. 2002) (internal quotation marks and citations omitted). Where, as here,

the BIA cites its decision in Matter of Burbano, 20 I.&N. Dec. 872 (BIA 1994),



      1
        Singh also argued that the petition should not have been admitted into
evidence because he did not have the opportunity to cross-examine the petitioner.
The BIA did not consider this argument on appeal. Because Singh did not object
on this ground in front of the IJ, the BIA was not required to rule on it. Matter of
Jimenez-Santillano, 21 I&N Dec. 567, 570 n.2 (BIA 1996). We therefore consider
this argument waived.

                                          3
without expressing disagreement with any part of the IJ's decision, the BIA adopts

the IJ's decision in its entirety. Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.

2005) (en banc).

                                          I.

      Singh has failed to show that he was prejudiced in any way by the lack of a

transcript at the January 2004 hearing. His chief argument is that he has no way of

knowing whether the I-140 document was previously submitted and rejected by the

IJ. Absent, at the very least, some plausible reason to think the document had in

fact been submitted, there is no prejudice to Singh. To the contrary, the IJ reported

that the only documents she had before her at the first hearing were the Notice to

Appear and Singh’s asylum application. If she had considered and rejected the

I-140 form, she would have been required to enter it in the record as evidence.

                                         II.

      Singh has not contested any of the significant facts contained in the I-140

document which was kept on file with the DHS. The name on the file was

identical to Singh's and it was signed by his employer on his behalf three years

earlier in order to help Singh obtain permanent resident status. The document was

not prepared in contemplation of litigation.




                                          4
      We have held that “name identity alone is sufficient to prove identity of

persons in the absence of probative rebuttal evidence.” Corona-Palomera v. INS,

661 F.2d 814, 817 (9th Cir. 1981). The I-140 form was sufficient to shift the

burden to Singh to show the time, place, and manner of his entry into the United

States. Singh offers no authority to the contrary.

                                         III.

      The January 2, 2004 proceedings had no preclusive effect on the issue of

Singh’s alienage. The IJ held that the DHS failed to meet its burden of showing

that Singh was an alien and she terminated the proceedings without prejudice.

There was no appeal, and thus no mandate from the BIA or from this court.

      Singh’s reliance on Ramon-Sepulveda v. INS, 824 F.2d 749 (9th Cir. 1987)

is inapposite. In Ramon-Sepulveda we held that res judicata barred the

Immigration and Naturalization Service (“INS”) from bringing a new Notice to

Appear where we had already ruled that the INS could not reopen proceedings to

admit a birth certificate which was not newly discovered. Id. at 750-51. Here, the

IJ expressly left open the possibility that new removal proceedings could be

initiated by terminating the case without prejudice. Singh has not “shown that an

issue involved in the present action was finally and conclusively resolved in his




                                          5
favor.” Fernhoff v. Tahoe Regional Planning Agency, 803 F.2d 979, 986 (9th Cir.

1986).

         PETITION DENIED.




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