Gurpreet Michael Singh v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10029
Non-Argument Calendar
____________________
GURPREET MICHAEL SINGH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A065-998-045
____________________
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2 Opinion of the Court 21-10029
Before WILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Gurpreet Singh, a native and citizen of India, petitions for
review of the Board of Immigration Appeals’s decision (1) dismiss-
ing his appeal of the immigration judge’s order of removal and (2)
denying his motion to remand. After careful consideration, we
deny his petition.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2017, Singh entered the United States on a conditional
permanent resident visa. Two years later, he pleaded nolo conten-
dere to (1) traveling to meet a minor for illegal sexual contact, in
violation of Florida Statutes section 847.0135, and (2) attempted
lewd and lascivious battery on a child older than twelve but less
than sixteen years old, in violation of Florida Statutes sections
777.04(1) (attempt) and 800.04(4)(a) (lewd and lascivious battery).
The government issued Singh a notice to appear, charging
him as removable for having committed an “aggravated felony.”
See 8 U.S.C. § 1227(a)(2)(A)(iii). At his removal hearing, through
counsel, Singh refused to concede that he had been convicted of an
aggravated felony. The immigration judge asked whether Singh
would be applying for relief from removal. Singh’s counsel re-
sponded that he was considering an application under section
212(h)—codified at 8 U.S.C. section 1182(h)—for an “adjustment of
status,” but “aside from that,” he conceded, “no other form of
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21-10029 Opinion of the Court 3
relief.” The immigration judge then asked whether “[Singh was]
afraid of returning to India” and Singh’s counsel replied that “[he]
had discussed that with [Singh]. [Singh] do[es] not have a claim for
asylum or withholding.”
The immigration judge concluded that both of Singh’s con-
victions were aggravated felonies. Because Singh was convicted
within two years of his entry to the United States, the immigration
judge held that he was statutorily barred from receiving an adjust-
ment of status under section 212(h). The immigration judge also
explained that both offenses were “particularly serious crimes,”
which disqualified Singh from applying for asylum. And because
Singh testified that he did not fear returning to India, the immigra-
tion judge concluded, he was not eligible for asylum, withholding
of removal, or protection under the Convention Against Torture.
Singh appealed to the board and made four arguments.
First, he contended that the immigration judge had erred in decid-
ing his convictions were aggravated felonies by relying on 18
U.S.C. section 16(b), which the Supreme Court had ruled unconsti-
tutionally vague in
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Sec-
ond, Singh argued that the immigration judge had erred in denying
him protection under the Convention Against Torture because his
extended family would persecute him if he returned to India and
his testimony that he didn’t fear returning to India was “a result of
the undue stress and duress of his current situation.” Third, Singh
maintained that the immigration judge hadn’t properly concluded
that his convictions were aggravated felonies. The immigration
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4 Opinion of the Court 21-10029
judge erred, Singh said, by failing to consider whether his
least se-
rious crime constituted an aggravated felony. Singh also asserted
his factual innocence and argued that his crime was victimless.
Fourth, Singh argued that the immigration judge had violated his
due process rights by not creating a full record for the board to re-
view and by not allowing him to attend his removal hearing.
Singh also moved to supplement the record—which the
board construed as a motion to remand—and asked the board to
remand to allow him to apply for asylum, withholding of removal,
deferral of removal, and relief under the Convention Against Tor-
ture. Singh argued that he was eligible for relief because his ex-
tended family would persecute him—falsely implicate him in
crimes, torture him, or even kill him—to obtain his and his parent’s
share of a plot of family land.
The board dismissed Singh’s appeal and denied his motion
to remand. Relying on our prior decisions in
United States v. Lock-
ley, 632 F.3d 1238, 1244 n.6 (11th Cir. 2011) (attempt),
United States
v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir. 2001) (lewd and las-
civious battery), and
Chuang v. U.S. Attorney General, 382 F.3d
1299, 1301–02 (11th Cir. 2004) (same), the board concluded that
Singh’s conviction for attempted lewd and lascivious battery was
categorically an aggravated felony. The board declined to address
whether Singh’s other conviction—for traveling to meet a minor
for illegal sexual contact—was an aggravated felony. The board
also noted that it could not “go behind” Singh’s convictions to
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21-10029 Opinion of the Court 5
reassess his claims of innocence or protestations that he had not
victimized anyone.
As to Singh’s motion to remand to file applications for asy-
lum and cancellation of removal, the board concluded that remand
was unnecessary because Singh’s conviction for an aggravated fel-
ony made him statutorily ineligible. As to Singh’s motion for re-
mand to apply for withholding of removal and relief under the
Convention Against Torture, the board noted that Singh had pre-
viously had the opportunity to apply for withholding of removal
and Convention Against Torture relief before the immigration
judge and Singh was bound by his attorney’s representation that he
did not have valid claims. The board also noted that Singh hadn’t
argued that circumstances had materially changed since his re-
moval hearing. As to Singh’s due process argument, the board ex-
plained that, contrary to Singh’s claim, he was present at his immi-
gration hearing and he hadn’t shown prejudice from any potential
failure to develop the record.
STANDARD OF REVIEW
We review the board’s decision as the agency’s final deci-
sion, except to the extent it expressly adopted the immigration
judge’s opinion or reasoning.
Perez-Zenteno v. U.S. Att’y Gen.,
913 F.3d 1301, 1306 (11th Cir. 2019). We review de novo the
agency’s conclusions of law.
Adefemi v. Ashcroft, 386 F.3d 1022,
1026–27 (11th Cir. 2004) (en banc). We review de novo constitu-
tional challenges.
Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341
(11th Cir. 2003). And we review the board’s denial of a motion to
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6 Opinion of the Court 21-10029
remand or to reopen for an abuse of discretion.
Ali v. U.S. Att’y
Gen., 643 F.3d 1324, 1329 (11th Cir. 2011) (“We construe a motion
to remand that seeks to introduce new evidence as a motion to re-
open.”);
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009) (“We review the denial of a motion to reopen an immigra-
tion petition for an abuse of discretion.”).
DISCUSSION
Singh makes three arguments on appeal. First, he argues
that the board erred in concluding that his conviction for attempted
lewd and lascivious battery was an aggravated felony. Second, he
contends that the board abused its discretion in denying his motion
to remand. And third, he asserts that the immigration judge vio-
lated his due process rights.
Attempted Lewd and Lascivious Battery on a Minor is an Aggra-
vated Felony
The government may deport—or “remove”—noncitizens
who commit certain crimes.
Donawa v. U.S. Att’y Gen., 735 F.3d
1275, 1278–79 (11th Cir. 2013) (citing 8 U.S.C. § 1227(a)). If a
noncitizen commits “an aggravated felony,” he also may be ineligi-
ble for discretionary relief from removal.
Id. The definition of “ag-
gravated felony” includes “attempted sexual abuse of a minor.”
8 U.S.C. § 1101(a)(43)(A), (U). Singh argues that his conviction un-
der Florida Statutes sections 777.04(1) and 800.04(4)(a) for at-
tempted lewd and lascivious battery on a minor is not an aggra-
vated felony.
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21-10029 Opinion of the Court 7
We use the categorical approach to determine whether a
state court conviction qualifies as an aggravated felony.
Donawa,
735 F.3d at 1280. Under the categorical approach, we consider the
statutory definition of the offense, not the facts of the case.
Id. We
ask only “whether the state statute defining the crime of conviction
categorically fits within the generic federal definition of a corre-
sponding aggravated felony.”
Id. A state offense is an aggravated
felony only if it necessarily involves elements equating to the ge-
neric federal offense.
Id.
Singh’s conviction qualifies as an aggravated felony because
it satisfies the federal definition of attempted sexual abuse of a mi-
nor. First, as to the “attempt” portion of his conviction, we’ve ex-
plained that Florida’s attempt statute—section 777.04(1)—is ge-
neric, meaning an attempt at a Florida crime necessarily qualifies
as an attempt at the corresponding federal crime.
Lockley, 632 F.3d
at 1244 n.6 (“Section 777.04(1) thus falls within the generic, con-
temporary meaning of attempt.”).
As to the substantive portion of Singh’s conviction—lewd
and lascivious battery on a child older than twelve but less than
sixteen years old—we’ve held that earlier and broader versions of
the same statute satisfied the generic federal version of sexual abuse
of a minor. We have defined the generic federal crime “sexual
abuse of a minor” as “a perpetrator’s physical or nonphysical mis-
use or maltreatment of a minor for a purpose associated with sex-
ual gratification.”
Chuang, 382 F.3d at 1301 (citing
Padilla-Reyes,
247 F.3d at 1163).
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In
Padilla-Reyes, we said that the 1987 version of Florida’s
lewd and lascivious battery statute (section 800.04) qualified as sex-
ual abuse of a minor and therefore constituted an aggravated fel-
ony under federal law. 247 F.3d at 1164. That version of the statute
applied to anyone who:
(1) Handle[d], fondle[d] or ma[de] an assault upon
any child under the age of 16 years in a lewd, lascivi-
ous, or indecent manner;
(2) Commit[ted] an act defined as sexual battery un-
der [section] 794.011(1)(h) upon any child under the
age of 16 years; or
(3) Knowingly commit[ted] any lewd or lascivious act
in the presence of any child under the age of 16 years
without committing the crime of sexual battery is
guilty of a felony of the second degree, punishable as
provided in [section] 775.082, [section] 775.083, or
[section] 775.084.
Neither the victim’s lack of chastity nor the victim’s
consent is a defense to the crime proscribed by this
section.
Id. at 1162 n.4 (citing Fla. Stat. § 800.04 (1987)). Then, in 1993, the
Florida legislature added another subsection criminalizing:
Commit[ting] actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, mastur-
bation, sadomasochistic abuse, actual lewd exhibition
of the genitals, or any act or conduct which simulates
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21-10029 Opinion of the Court 9
that sexual battery is being or will be committed upon
any child under the age of 16 years or forces or entices
the child to commit any such act;
Fla. Stat. § 800.04 (1993). In
Chuang, we reasoned that the 1993
amendments did not change whether lewd and lascivious battery
was categorically an aggravated felony. 382 F.3d at 1302. This was
because the new subsection did not criminalize any conduct that
was not
also done for a purpose associated with sexual gratification.
Id. In other words, the newly proscribed conduct also constituted
sexual abuse of a minor.
Id. So, because all of the conduct pro-
scribed in the 1993 version of the statute qualified as sexual abuse
of a minor, a conviction under the statute was categorically an ag-
gravated felony.
Id.
The 2014 version of lewd and lascivious battery—the ver-
sion that Singh violated—is narrower than the earlier versions and
covers the same conduct that we categorially found to be an aggra-
vated felony in
Padilla-Reyes and
Chuang.
Padilla-Reyes, 247 F.3d
at 1164;
Chuang, 382 F.3d at 1302. The 2014 version criminalizes
only
1. Engaging in a sexual activity with a person under
12 years of age or older but less than 16 years of age;
or
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10 Opinion of the Court 21-10029
2. Encouraging, forcing, or enticing any person less
than 16 years of age to engage in sadomasochistic
abuse, sexual bestiality, prostitution, or any other act
involving sexual activity.
Fla. Stat. § 800.04(4)(a) (2014). Unlike the 1993 version, which pro-
hibited handling, fondling, or assaulting a minor, the 2014 version
prohibits only oral, anal, or vaginal penetration of a minor. Oral,
anal, and vaginal penetration of a minor were prohibited by the
earlier versions of Florida’s lewd and lascivious battery statute that
we found to be categorically aggravated felonies in
Padilla-Reyes
and
Chuang.
Padilla-Reyes, 247 F.3d at 1164;
Chuang, 382 F.3d at
1302. That same conduct must also be categorically an aggravated
felony under the newer and narrower version of the statute.
In response, Singh offers the following syllogism involving
the Double Jeopardy Clause and the categorical approach. He
points out that he pleaded guilty to
both unlawful traveling to meet
a minor in violation of Florida Statutes section 847.0135
and also
to lewd and lascivious battery in violation of Florida Statutes sec-
tion 800.04(4)(a). Therefore, he argues, because (1) “it is Double
Jeopardy to be charged with two crimes for the same offense”; (2)
“[his] conviction rests upon nothing more than the least of the acts
criminalized”; and (3) the least serious offense—traveling to meet
a minor for sex—is not an aggravated felony, he is not guilty of an
aggravated felony.
But Singh’s argument mischaracterizes the categorical ap-
proach. Under the categorical approach, we determine whether
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21-10029 Opinion of the Court 11
“the least of the acts criminalized” by the statute would qualify as
a generic federal offense.
Donawa, 735 F.3d at 1280–81. It doesn’t
mean that, where a noncitizen is convicted of
multiple crimes, we
consider only the least serious one. Here, even the least serious act
criminalized by section 800.04(4)(a) is categorically an aggravated
felony, so the categorical approach doesn’t help Singh.
See
Chuang, 382 F.3d at 1302.
Singh’s other arguments are meritless. First, he argues that
the board erred in relying on the since-ruled-unconstitutionally-
vague 18 U.S.C. section 16(b). But the board didn’t rely on section
16(b)—it relied on the “aggravated felony” provision in 8 U.S.C.
section 1227(a)(2)(A)(iii)—so Singh’s argument misses the mark.
Second, Singh takes issue with the board’s “finding” that his con-
victions were for “particularly serious crimes.” But because the
board did not address—or adopt—this aspect of the immigration
judge’s decision, we do not review it.
See Perez-Zenteno, 913 F.3d
at 1306 (“We review the [board’s] decision as the final judgment,
unless the [board] expressly adopted the [immigration judge’s]
opinion.”). Third, Singh’s arguments about the factual circum-
stances underlying his conviction are irrelevant because we are
concerned only with the fact of conviction and the elements of the
crime.
See Donawa, 735 F.3d at 1280 (“Under the categorical ap-
proach . . . [w]e do not consider the facts of the case[.]”).
Motion to Remand
The board denied Singh’s motion to remand so that he could
apply for discretionary relief because he was either ineligible for the
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12 Opinion of the Court 21-10029
relief or he had waived the opportunity to apply. Singh argues that
the board abused its discretion in doing so.
After an immigration judge finds a noncitizen removable, he
can appeal to the board, or, as relevant here, file either a motion to
reconsider (for errors of fact or law) or a motion to reopen (to sub-
mit new evidence). 8 U.S.C. § 1229a. The board treated Singh’s
motion as a motion to reopen and so will we. “[T]here [are] ‘at
least’ three independent grounds on which the [board] might deny
a motion to reopen—[1] failure to establish a prima facie case for
the relief sought, [2] failure to introduce previously unavailable,
material evidence, and [3] a determination that even if these re-
quirements were satisfied, the movant would not be entitled to the
discretionary grant of relief which he sought.”
INS v. Doherty, 502
U.S. 314, 323 (1992) (quoting
INS v. Abudu, 485 U.S. 94, 104–05
(1988)).
Here, the board did not abuse its discretion by denying
Singh’s motion to remand. Singh sought remand so he could apply
for asylum, cancellation of removal, withholding of removal, and
protection under the Convention Against Torture. But because
Singh was convicted of an aggravated felony, he was not eligible
for asylum or cancellation of removal.
See 8 U.S.C. §§ 1158(B)(i),
1229(b)(1)(C). And Singh, through counsel, admitted at his re-
moval hearing that he had no claim for protection under the Con-
vention Against Torture because he did not fear returning to India.
That admission is binding on Singh here.
See Dos Santos v. U.S.
Att’y Gen., 982 F.3d 1315, 1319 (11th Cir. 2020) (“[T]he general rule
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21-10029 Opinion of the Court 13
[is] that a[] [noncitizen] is bound by h[is] attorney’s concession.”).
Further, Singh’s proffered evidence—affidavits attesting to threats
made by his family against him should he return to India—was pre-
viously available and could have been presented to the immigra-
tion judge at or before his removal hearing. Thus, because the
proffered affidavits are not “previously unavailable, material evi-
dence,” the board did not abuse its discretion in denying Singh’s
motion.
See Doherty, 502 U.S. at 323, 326 (explaining that “it was
well within [the Attorney General’s] broad discretion in consider-
ing motions to reopen to decide that the material adduced by re-
spondent could have been foreseen or anticipated at the time of the
earlier proceeding”).
Due Process
Singh finally argues that the board violated his due process
rights by not creating a full record, by not conducting a removal
hearing in compliance with the statute, and by not allowing him to
attend his removal hearing. Singh was not deprived of due process.
The immigration judge held a removal proceeding at which
Singh was present. Singh was represented by counsel and was
given an opportunity to present any evidence he had and to ask for
any relief he sought. The hearing was transcribed and the immi-
gration judge issued an order explaining his decision. Singh had a
full opportunity to appeal, did so, and the board issued an order
explaining its decision. Singh got all the process he was due.
See
Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010)
(“Due process requires that [noncitizens] be given notice and an
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14 Opinion of the Court 21-10029
opportunity to be heard in their removal proceedings.”). And
Singh has not argued that he was prejudiced in any way.
See id.
(“To establish a due process violation, the petitioner must show
that she was deprived of liberty without due process of law and that
the purported errors caused her substantial prejudice. To show
substantial prejudice, [a noncitizen] must demonstrate that, in the
absence of the alleged violations, the outcome of the proceeding
would have been different.”) (internal citation omitted).
PETITION DENIED.
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