Amritpal SINGH, Plaintiff-Appellant, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES and Thomas Cioppa, District Director, United States Citizenship and Immigration Services’ New York District Office, Defendants-Appellees.
Docket No. 16-1729
United States Court of Appeals, Second Circuit.
August Term, 2016 Argued: December 15, 2016 Decided: December 22, 2017 As Amended January 9, 2018
441 F.3d 441
Alejandro-Rosado nevertheless argues that the guidelines recommended a sentence of four to ten months and the district court improperly exceeded this recommendation. But these guidelines are “merely advisory.” See Soto-Soto, 855 F.3d at 451. Regardless of whether we agree that this was the appropriate sentence, merely deciding on appellate review that “some lesser sentence [is] appropriate is not, in itself, a sufficient reason to disturb the district court‘s exercise of discretion.” Del Valle-Rodriguez, 761 F.3d at 177 (1st Cir. 2014).
Turning next to the inquiry reviewing the district court‘s rationale, we determine that it was plausibly reasoned. Where district courts stress the factors that lead to its sentence and explain the purposes for the sentence, we have upheld its reasoning. See, e.g., Rivera-Gonzalez, 776 F.3d at 52 (district court‘s sentence was plausibly reasoned because it stressed the seriousness of the crime and need for the sentence). Here, the district court did both. It highlighted the frequency of Alejandro-Rosado‘s violations, the severity of them, and his refusal to follow the probation officer‘s instructions. See United States v. O‘Brien, 870 F.3d 11, 21 (1st Cir. 2017) (reasoning was clear when it emphasized the severity of the conduct). Next, it plausibly explained that in light of these factors, the sentence was necessary to “provide just punishment for the offense, afford adequate deterrence, and to protect the public from further crimes” by the defendant. In light of these justifications, we find that the district court‘s reasoning was entirely plausible.
C. Conclusion
For the reasons made clear above, we uphold the sentence imposed on Alejandro-Rosado for violation of his terms of supervised release.
Affirmed.
BRANDON M. WATERMAN (Benjamin H. Torrance on the brief), for Joon H. Kim, Acting United States Attorney for the Southern District of New York, New York, N.Y., for Defendants-Appellees.
Before: WINTER, JACOBS, and POOLER, Circuit Judges.
* District Director Thomas Cioppa is substituted for his predecessor, Phyllis Coven.
Amritpal Singh appeals from Judge Furman‘s dismissal of his complaint for lack of subject-matter jurisdiction. The complaint, relying on the
BACKGROUND
We assume the accuracy of facts alleged in the complaint. Those allegations are as follows. Singh, a native of India, entered the United States illegally in June 1995. On November 29, 1995, the Immigration and Naturalization Service (“INS“)—the agency at that time responsible for administering the immigration laws—commenced deportation proceedings against him. At a December 1995 hearing in San Francisco, California, Singh conceded his deportability by confirming the accuracy of the INS‘s allegations. The immigration judge then scheduled another hearing for March 1996. Singh failed to appear at that hearing, and the immigration judge ordered him deported to India. Singh remained in the United States without any effort visible on this record to deport him.
In June 2000, he married Jaswant Kaur, a naturalized United States citizen. That same month, Kaur submitted a Form I-130 Petition to establish her marriage to Singh for purposes of the still-open immigration proceedings. In April 2002, the INS requested additional evidence to establish that Kaur‘s marriage to Singh was entered into in good faith and not to evade the immigration laws. Kaur did not respond to the request for additional evidence, and the INS denied her petition.
In 2005, Singh filed an application for adjustment of his immigration status based on his marriage to Kaur. At an October 12, 2006 interview pertaining to the adjustment-of-status application, Singh was taken into custody pursuant to the outstanding 1996 deportation order. While in custody, Singh filed a motion with the immigration court in San Francisco to reopen the 1996 deportation order. He claimed that he had no notice of the March 1996 hearing. The immigration judge denied that motion in November 2006. The Board of Immigration Appeals (“BIA“) affirmed that denial in January 2007. Singh timely filed a petition for review and a motion to stay deportation in the Ninth Circuit. The Ninth Circuit immediately granted Singh a stay of deportation. Nevertheless, the government deported Singh to India several hours later.
The government conceded that Singh‘s removal was improper given the Ninth Circuit‘s stay. Consequently, in May 2007, Singh was temporarily paroled back into the United States by the Attorney General, who exercised his discretion to grant temporary parole to certain aliens. See
After Singh‘s return, Kaur filed another Form I-130 Petition, this time with the USCIS, on Singh‘s behalf. The USCIS eventually approved Kaur‘s petition on May 6, 2009. Accompanying Kaur‘s I-130 filing was Singh‘s petition to the USCIS for adjustment of his status. This petition raised legal issues at the heart of this case.1 As discussed infra, if Singh‘s depor-
tation
While Singh‘s motion for reconsideration was pending with the USCIS, the Ninth Circuit denied Singh‘s petition for review of the January 2007 BIA decision affirming the immigration judge‘s denial of Singh‘s motion to reopen his deportation proceedings. Singh v. Holder, 483 Fed.Appx. 350 (9th Cir. 2012). The Ninth Circuit rejected Singh‘s argument that his 2007 removal terminated his deportation proceedings.
On August 8, 2013, the USCIS‘s Acting District Director for New York denied Singh‘s motion to reconsider the USCIS‘s April 6, 2009 decision dismissing Singh‘s application for adjustment of status. The August 8 decision noted the Ninth Circuit‘s dismissal of Singh‘s petition for review and found that the “USCIS still does not have jurisdiction over [Singh‘s] application” because he was “under an order of deportation.”
After that denial, Singh moved the BIA to reopen the deportation proceedings to allow adjustment of his status to that of a lawful permanent resident based on his marriage to Kaur. Singh argued that he was entitled to this adjustment following the USCIS‘s May 6, 2009 approval of the Form I-180 that Kaur filed on his behalf. The BIA denied Singh‘s motion to reopen on December 3, 2013.
On December 26, 2013, Singh filed another petition for review in the Ninth Circuit, challenging the BIA‘s 2013 denial of the motion to reopen. He also moved for a stay of removal pending disposition of the petition, which was granted. See Singh v. Holder, No. 13-74456 (9th Cir. Mar. 21, 2014). On June 3, 2015, the government requested that the Ninth Circuit summarily reject Singh‘s petition. On July 28, 2017, the Ninth Circuit granted the government‘s motion and denied the petition in part and dismissed it in part for lack of jurisdiction. The decision held that the BIA had jurisdiction over the application for adjustment of status, that Singh‘s motion to reopen was time- and number-barred, and that the court lacked jurisdiction to review the BIA‘s failure to reopen the deportation proceedings sua sponte. The stay of removal expired September 19, 2017. Singh, No. 13-74456 (9th Cir. Sept. 19, 2017).
On February 23, 2015, while the petition for review was pending in the Ninth Circuit and a stay of removal was in place, Singh filed the present action. In this matter, he invokes the APA provisions authorizing judicial review of final agency actions, see
On March 30, 2016, the district court determined that it lacked subject-matter jurisdiction over this action and accordingly dismissed Singh‘s complaint. This appeal followed.
DISCUSSION
Federal courts are courts of limited jurisdiction and must independently verify the existence of subject-matter jurisdiction before proceeding to the merits. See, e.g., Doe v. United States, 833 F.3d 192, 196 (2d Cir. 2016); City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 125-26 (2d Cir. 2011). Because resolution of subject-matter jurisdictional issues precedes consideration of the merits, and we conclude that we lack such jurisdiction, we need not consider the various rulings of the Ninth Circuit on issues before us save where those rulings are relevant to our jurisdiction. We review the district court‘s decision to dismiss for lack of subject-matter jurisdiction de novo. See Sharkey v. Quarantillo, 541 F.3d 75, 82-83 (2d Cir. 2008).
Singh‘s complaint invoked federal-question jurisdiction under
As part of the REAL ID Act of 2005, Congress mandated that “the sole and exclusive means for judicial review of an order of removal” should be “a petition for review filed with an appropriate court of appeals.”
No party contends that the present action is a petition for review of Singh‘s removal order. The principal issue before us is whether Singh‘s APA challenge seeks “judicial review of an order of removal” as that term is used in Section 1252(a)(5). In Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011) (per curiam), the petitioner sought to compel the USCIS to consider her I-212 application for permission to reapply for admission to the United States. We held that the term “judicial review of an order of removal,” as used in Section 1252(a)(5), encompasses both “direct” and “indirect” challenges to removal orders. Id. at 55. Because Singh‘s APA challenge is an “indirect” challenge to his removal order, it falls under Section 1252(a)(5)‘s limitation.
Delgado instructs that we look to “the substance of the relief that a plaintiff is seeking” in order to determine whether a claim seeks review of a removal order. See id. Section 1252(a)(5)‘s prohibition applies broadly, not only to situations where the favorable resolution of a plaintiff‘s claim would “per se prevent [the plaintiff‘s] removal” but also where the claim “is a necessary prerequisite to [the plaintiff‘s]
Singh‘s APA claim seeks to require the USCIS to consider the merits of his adjustment-of-status application. This is the first step in adjusting his status to that of a lawful permanent resident. If he succeeded in becoming a lawful permanent resident, his pending removal order would, he hopes, be rendered a nullity.
Critical to the issue is the division of jurisdiction between the BIA and the USCIS. Depending on the circumstances, jurisdiction to consider an adjustment-of-status application lies either with an immigration judge and the BIA or with the USCIS, but never simultaneously with both. See
Given that the USCIS and the BIA do not have concurrent jurisdiction over Singh‘s proceedings, the purpose of this action is to shift jurisdiction from the tribunal that has ordered him removed and to render the removal order ineffective. For those reasons, Singh‘s claim is one that seeks “judicial review of an order of removal,”
Because Section 1252(a)(5)‘s limitation applies here, it “precludes judicial review” under the APA. See
CONCLUSION
We have considered Singh‘s remaining arguments and find them to be without merit. We affirm.
RALPH K. WINTER
UNITED STATES CIRCUIT JUDGE