Tejbeer Singh v. Merrick Garland
19-70906
| 9th Cir. | Oct 6, 2021Background
- Petitioner Tejbeer Singh, an Indian national, appealed the IJ’s denial of asylum, withholding of removal, and CAT relief and the denial of his motion to remand for consideration of voluntary departure eligibility.
- The government’s Notice to Appear (NTA) lacked the time and place of proceedings; the IJ nevertheless proceeded and denied relief. Singh challenged jurisdiction, credibility findings, past persecution, and voluntary-departure eligibility.
- The BIA dismissed Singh’s appeal and denied his motion to remand; Singh petitioned for review under 8 U.S.C. § 1252.
- The Ninth Circuit held the defective NTA did not divest the IJ of jurisdiction under controlling precedent, but found procedural defects in the BIA’s treatment of Singh’s claims.
- The court concluded Singh exhausted his challenges to the adverse credibility finding and past-persecution finding, but the BIA failed to address the IJ’s key reasons and remanded for the BIA to revisit those issues.
- The court remanded for the BIA to reconsider Singh’s eligibility for voluntary departure under the continuous-physical-presence rule and to decide what remedy, if any, Niz-Chavez requires for a noncompliant NTA; a stay of removal was granted pending BIA decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defective NTA (missing time/place) deprived the IJ of jurisdiction | Singh: defective NTA voids jurisdiction and proceedings should be terminated | Govt: NTA defect did not divest IJ of jurisdiction; proceedings valid | Held: Denied — defective NTA did not deprive IJ of jurisdiction (followed Karingithi) |
| Whether Singh exhausted and preserved challenge to IJ’s adverse credibility finding and whether BIA adequately reviewed it | Singh: he sufficiently exhausted and BIA failed to address IJ’s specific credibility reasons | Govt: BIA’s summary dismissal was adequate | Held: Singh exhausted; BIA failed to discuss IJ’s identified inconsistencies — remand for BIA to assess whether adverse credibility was clearly erroneous |
| Whether Singh preserved challenge to IJ’s past-persecution finding and whether BIA addressed it | Singh: raised challenge and BIA ignored it | Govt: BIA decision sufficient | Held: Singh raised the issue; BIA improperly ignored it — remand for BIA consideration |
| Whether Singh was eligible for post-conclusion voluntary departure and what remedy follows from a statutory-defective NTA | Singh: continuous presence should run until receipt of a compliant NTA; Niz-Chavez may require termination/remedy | Govt: service of the putative NTA or hearing notice ended continuous presence; no termination required | Held: Under Posos-Sanchez, continuous presence runs until receipt of a compliant §1229(a) NTA — remand for BIA to reassess voluntary-departure eligibility and to consider appropriate remedy in light of Niz-Chavez |
Key Cases Cited
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019) (a defective NTA missing time/place does not automatically divest the immigration court of jurisdiction)
- Bare v. Barr, 975 F.3d 952 (9th Cir. 2020) (BIA brief can place the BIA on notice of issues for exhaustion purposes)
- Tekle v. Mukasey, 533 F.3d 1044 (9th Cir. 2008) (BIA must identify the IJ’s most significant adverse-credibility reasons to preserve review)
- Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005) (BIA may not ignore arguments presented by a petitioner)
- Posos-Sanchez v. Garland, 3 F.4th 1176 (9th Cir. 2021) (continuous physical presence for voluntary departure accrues until receipt of a §1229(a)-compliant NTA)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (statutory requirements for NTAs may affect the appropriate remedy for defective notices)
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (ordinary remand rule; courts normally remit issues to agency to decide in the first instance)