         10-468-ag
         Singh v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A075 320 097
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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 15th day of June, two thousand eleven.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                RAYMOND J. LOHIER, JR.,
10                      Circuit Judges.
11       _______________________________________
12
13       AMRIK SINGH,
14                Petitioner,
15
16                         v.                                   10-468-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Amrik Singh, pro se.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Blair T. O’Connor,
27                                     Assistant Director; Saul Greenstein,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DISMISSED in part and DENIED in part.

 5       Petitioner Amrik Singh, a native and citizen of India,

 6   seeks review of a January 14, 2010 order of the BIA,

 7   affirming the March 27, 2008 decision of Immigration Judge

 8   (“IJ”) Michael W. Straus, which denied his application for

 9   adjustment of status.     In re Amrik Singh, No. A075 320 097

10   (B.I.A. Jan. 14, 2010), aff’g No. A075 320 097 (Immigr. Ct.

11   Hartford Mar. 27, 2008).     We assume the parties’ familiarity

12   with the underlying facts and procedural history of this

13   case.

14       Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions “for the sake of

16   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17   2008) (per curiam).     The applicable standards of review are

18   well-established.     See 8 U.S.C. § 1252(b)(4)(B)(2006);

19   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       As a threshold jurisdictional matter, under 8 U.S.C.

21   § 1252(a)(2)(B)(i), (D), we lack jurisdiction to review the

22   agency’s denial of adjustment of status except to the extent

23   that Singh raises constitutional claims or questions of law.

                                     2
 1   See Wallace v. Gonzales, 463 F.3d 135, 138 (2d Cir. 2006)

 2   (per curiam); see also Xiao Ji Chen v. U.S. Dep’t of

 3   Justice, 471 F.3d 315, 325 (2d Cir. 2006).    In finding Singh

 4   inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) for having

 5   procured his visa by fraud or willful misrepresentation, and

 6   thus ineligible to adjust his status, the agency relied on

 7   Singh’s testimony that his purpose in coming to the United

 8   States was not to dance as a member of a dance troupe as

 9   indicated in his visa application.   Singh now attempts to

10   reconcile his testimony.   Because his argument does not

11   raise a question of law or a constitutional claim, however,

12   we lack jurisdiction to review the argument under 8 U.S.C.

13   § 1252(a)(2)(B)(i), and we dismiss the petition to this

14   extent.   See Wallace, 463 F.3d at 138.

15       Singh does raise a question of law when he argues that

16   the agency erred in placing the burden on him to show that

17   he was admissible, rather than requiring the government to

18   demonstrate that he was inadmissible.     See Paese v. Hartford

19   Life & Accident Ins. Co., 449 F.3d 435, 441 (2d Cir. 2006)

20   (recognizing that “[t]he placement of the burden of proof is

21   a question of law”).   Singh is correct that, here, the

22   government bore the initial burden of demonstrating that he


                                   3
 1   was removable.     See Ibragimov v. Gonzales, 476 F.3d 125, 131

 2   (2d Cir. 2007).    However, because Singh conceded that he was

 3   removable for overstaying the terms of his visa as charged

 4   in the Notice to Appear, the government discharged its

 5   burden of showing his removability.     See Hoodho v. Holder,

 6   558 F.3d 184, 191–92 (2d Cir. 2009).    Having conceded his

 7   removability, Singh bore the burden of demonstrating his

 8   eligibility for adjustment of status and that he was not

 9   inadmissible.     See Aslam v. Mukasey, 537 F.3d 110, 115―17

10   (2d Cir. 2008) (per curiam).

11       Singh also argues that he met his burden of

12   demonstrating his admissibility by showing that he was

13   admitted.   This argument fails, however, because an alien

14   may be “admitted” but still remain “inadmissible” within the

15   meaning of the statute.     See Emorkah v. Mukasey, 523 F.3d

16   110, 118 (2d Cir. 2008).

17       Singh additionally raises a colorable constitutional

18   claim over which we have jurisdiction when he contends that

19   the IJ violated his right to due process by “acting as the

20   prosecutor” and sua sponte finding him inadmissible for

21   having procured his visa by fraud or willful

22   misrepresentation.     See Wallace, 463 F.3d at 138.   Although


                                     4
 1   an IJ must maintain impartiality, see, e.g., Islam v.

 2   Gonzales, 469 F.3d 53, 55–56 (2d Cir. 2006), we have

 3   recognized that the IJ’s role is to participate actively in

 4   developing the record, see Qun Yang v. McElroy, 277 F.3d

 5   158, 162 (2d Cir. 2002) (per curiam).   Accordingly, even if

 6   Singh is correct in his contention that the IJ found him

 7   inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) without

 8   prompting from government counsel, his right to due process

 9   was not thereby violated, as he was provided a full and fair

10   opportunity to address his inadmissibility.   See Burger v.

11   Gonzales, 498 F.3d 131, 134 (2d Cir. 2007).

12       Finally, Singh contends that the IJ’s denial of his

13   asylum application was in error and that his case should be

14   remanded to the BIA for consideration of his asylum claim.

15   As the government argues, however, Singh, through his

16   counsel, withdrew his asylum claim in his August 2004 motion

17   to remand and never sought to reinstate it before the

18   agency.   Accordingly, we decline to address Singh’s

19   arguments with respect to asylum.   See Karaj v. Gonzales,

20   462 F.3d 113, 119 (2d Cir. 2006); Hoodho, 558 F.3d at 192

21   (“[A] party who voluntarily chose an attorney as his

22   representative in an action cannot avoid the consequences of

23   the acts or omissions of this freely selected agent.”

24   (internal quotation marks and alterations omitted)).

                                   5
1        For the foregoing reasons, the petition for review is

2    DISMISSED in part and DENIED in part.   As we have completed

3    our review, any stay of removal that the Court previously

4    granted in this petition is VACATED and any pending motion

5    for a stay of removal in this petition is DISMISSED as moot.

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate

8    Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                              FOR THE COURT:
10                              Catherine O’Hagan Wolfe, Clerk




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