Sukhraj Singh v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2022
• Docket: 17-71719
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUKHRAJ SINGH, No. 17-71719

Petitioner, Agency No. A205-408-065

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 15, 2022** San Francisco, California

Before: CHRISTEN and BRESS, Circuit Judges, and FEINERMAN,*** District Judge.

Sukhraj Singh, a citizen of India, petitions for review of a Board of

Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. (IJ) order denying his claims for asylum, withholding of removal, and protection

under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition.

Singh argues that the IJ violated his due process rights by denying his request

for humanitarian asylum prior to the hearing date on that request. We review due

process claims de novo. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir.

2014). To establish a due process violation in IJ proceedings, a petitioner must show

both that the proceeding was “so fundamentally unfair that [he] was prevented from

reasonably presenting his case,” and that he was prejudiced, “which means that the

outcome of the proceeding may have been affected by the alleged violation.”

Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal quotation marks

omitted). Singh has not made this showing.

Singh had an opportunity to present his claim for humanitarian asylum to the

IJ, notwithstanding his erroneous assumption that the briefing deadline had changed

because his hearing had been rescheduled. Singh had requested and received four

months within which to file a brief, and it was not for an additional three months—

seven months after the briefing deadline was initially set—that the IJ finally denied

Singh’s claim. Singh also had the opportunity to argue his entitlement to

humanitarian asylum in his initial proceedings before the IJ, and did not do so.

Yeghiazaryan v. Gonzales, 439 F.3d 994 (9th Cir. 2006), does not support

2 Singh. In Yeghiazaryan, the BIA violated a petitioner’s due process rights by

denying his motion to reopen before the applicable briefing deadline. Id. at 998–

1000. Here, the IJ did not deny Singh’s humanitarian asylum request until three

months after the applicable briefing deadline had elapsed.

Singh also has not shown prejudice for purposes of his due process claim. The

IJ considered whether Singh was entitled to humanitarian asylum based on his prior

documentary evidence and hearing testimony, and decided that he was not. Singh

has offered no reason to conclude that the IJ’s denial of humanitarian asylum was

erroneous. Singh thus has not shown a violation of his due process rights. See

Colmenar, 210 F.3d at 971.

PETITION DENIED.