Mandeep Singh v. ERIC H. HOLDER, JR., Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 2, 2012
Decided February 6, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12‐1253
MANDEEP SINGH,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A087‐321‐972
O R D E R
Mandeep Singh, a 25 year‐old citizen of India, entered the country without
inspection in 2001. After he applied for an adjustment in status in 2008, an immigration
judge ordered his removal, and his application was denied. He now petitions for review of
an order of the Board of Immigration Appeals denying his motion to reopen his removal
proceedings. We conclude that the board did not abuse its discretion and deny Singh’s
petition.
Singh married a U.S. citizen in 2007 and has applied for permanent resident status,
but his current status as an alien who entered the country without inspection prevents him
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 3 --

No. 12‐1253 Page 2
from becoming a permanent resident without first returning to India and reapplying at the
American embassy. So Singh applied under 8 U.S.C. § 1255(i) to adjust his status to that of
an alien lawfully admitted for permanent residence—a reclassification that might allow him
to become a permanent resident without leaving the country. Section 1255(i) permits an
alien present in the United States without inspection to adjust his status if he can show that
he is the child of an alien who filed an approvable visa petition before May 2001.
Id. § 1255(i); 8 C.F.R. § 1245.10(a); Ahmed v. Gonzales, 465 F.3d 806, 808 (7th Cir. 2006).
Singh’s application relied on a visa petition filed in 1998 by his stepmother, an American
citizen, on his father’s behalf. But the Department of Homeland Security denied Singhʹs
application—under the rationale (since abandoned) that the 1998 petition had not listed
Singh as one of the father’s children—and initiated removal proceedings.
At Singh’s removal hearing, the immigration judge granted Singh a continuance,
warning him that he would need to submit documents showing that his father’s 1998
petition was approvable when it was filed. The IJ also ordered the government’s attorney to
provide him and Singh with copies of the governmentʹs files regarding the fatherʹs 1998
petition. The government now admits that it did not comply with this order.
The hearing reconvened nearly one year later, and Singh submitted copies of his
birth certificate, his father’s visa petition, and his father’s marriage certificate. But the IJ
concluded that Singh failed to establish that the fatherʹs petition was approvable when filed
because he did not show that the father’s marriage—which lasted only two years—was
bona fide. Accordingly, the IJ denied Singhʹs application to adjust status. The Board of
Immigration Appeals upheld the IJʹs determination.
Singh soon moved to reopen his case and attached several documents which he did
not present at his removal hearing, including an affidavit from the father describing his
genuine love for his ex‐wife and the history of their relationship, several photos of their civil
marriage ceremony, and copies of the ex‐wifeʹs passport and birth certificate. The motion,
signed only by Singhʹs counsel, explained that these documents were not available at the
hearing because they had been in storage in India, and Singh had been unable to get his
father to retrieve them in time.
The Board denied the motion, concluding that Singh had not met his burden to show
why he had been unable to submit these documents at his removal hearing. The Board
noted that the representations of Singh’s counsel regarding the delay did not constitute
evidence, and thus could not excuse the delay. And even if some of these documents were
in storage, the Board added, counsel’s representations did not explain why Singh could not
have obtained the affidavit from the father earlier.

-- 2 of 3 --

No. 12‐1253 Page 3
Singh now petitions for review, insisting that the documents were unavailable at the
time of the removal proceeding because they were in storage in India, and that his
immigration status made it impossible for him to retrieve them personally. He maintains
that he was not permitted to impress upon the Board how difficult the documents were to
obtain.
But Singh was given an opportunity to establish due diligence—he was free to
submit an affidavit explaining the delay. See, e.g., Krougliak v. INS, 289 F.3d 457, 459 (7th Cir.
2002); see also El‐Gazawy v. Holder, 690 F.3d 852, 860 (7th Cir. 2012) (submitting affidavits
supporting motion to reopen due to ineffective assistance of counsel). Indeed Singh used
this opportunity to submit his father’s affidavit.
Nor did the Board abuse its discretion by requiring Singh to explain the delay in
retrieving the documents. A petitioner seeking to reopen his removal proceedings bears the
burden of demonstrating that the new evidence he seeks to submit “was not available and
could not have been discovered or presented at the former hearing” and must support that
contention with “affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c); Lin v.
Gonzales, 435 F.3d 708, 711 (7th Cir. 2006); Bhasin v. Gonzales, 423 F.3d 977, 984 (7th
Cir. 2005). An assertion by counsel is not evidence.
One final note: At argument the government conceded that it did not comply with
the IJ’s order to produce the government’s file on Singh’s father. We expect a higher degree
of cooperation by government attorneys in facilitating the efforts of applicants and
immigration judges to develop a complete record. Although the dereliction of its duty to
turn over the file pursuant to the IJ’s order is indefensible, it does not excuse Singh from the
requirement that he provide evidence that the documents he sought to introduce belatedly
were previously unavailable. Nor does it not rise to the level of a due process violation.
Singh has no liberty or property interest in having his status adjusted—a purely
discretionary form of relief. See Cevilla v. Gonzales, 446 F.3d 658, 662 (7th Cir. 2006); Hamdan
v. Gonzales, 425 F.3d 1051, 1061 (7th Cir. 2005). In any event, the issue is waived. Contrary to
the representations at oral argument by Singh’s counsel, Singh did not present his due
process argument to the Board. See Umezurike v. Holder, 610 F.3d 997, 1003 (7th Cir. 2010);
Mekhtiev v. Holder, 559 F.3d 725, 729 (7th Cir. 2009).
The petition is DENIED.

-- 3 of 3 --