U.S-based Guyanese loses appeal in deportation case

The United States’ Court of Appeals has denied a petition from an illegal Guyanese immigrant to review his deportation after he failed to voluntarily leave the country as he had promised.

In February 2001, Shasrie Singh – a Guyanese by birth – entered the U. S. illegally. The authorities subsequently discovered his illegal status and, on October 18, 2001, he was issued a Notice to Appear, which charged that he was removable under the Immigration and Nationality Act. On November 14, 2001, Singh appeared before the immigration judge with counsel Brian Tucker, and agreed with the court’s decision to deport him. His application for voluntary departure was granted by the judge, who also set his departure date for March 14, 2002.

However, Singh failed to voluntarily depart the U. S.; and on April 2, 2009, through a new counsel, he filed a motion to reopen proceedings with the immigration judge. He sought reopening on the basis that his daughter, Nadira, a U.S. citizen, had asthma and allergies.

Singh alleged that she would suffer hardship if he was removed from the United States.

Although Singh agreed that his motion was filed beyond the filing deadline, he argued that the deadline should be (relaxed), as he had received ineffective assistance of counsel during his 2001 removal proceedings. In an affidavit, he claimed that he paid someone US$2,000 to file an appeal. The individual, who was not identified, took his money but did not file an appeal. Singh contended that he only recently discovered that no appeal had been filed.

On April 21, 2009, the immigration judge denied the motion to reopen the case. After reviewing the record of proceedings, including the audiotape of the November 14, 2001 hearing, the judge determined that the motion was untimely. He pointed out that Singh had filed the motion more than seven years late. In addition, the judge determined that Singh had not made out a prima facie case for cancellation of removal.

Singh, through counsel, appealed to the Immigration Board, and whilst the appeal was pending, the Attorney General vacated his original decision and reinstated the previously established standards for adjudicating motions to reopen appeals based on a claim of ineffective assistance of counsel.

The board, on January 8, 2010, referred Singh’s case to the immigration judge for reconsideration of the ineffective assistance of counsel claim under the newly-reinstated standards.

On that occasion, the judge gave Singh an opportunity to submit new arguments and additional evidence in support of his motion to reopen the appeal.

Singh submitted new documents in support of cancellation of removal, and new claims for adjustment of status and asylum, with supporting documents, including a marriage certificate showing his marriage to Sonia Lee Croote on June 27, 2009; and medical records for his daughter Nadira. Singh also argued that his marriage was bona fide.

On April 1, 2010, the judge again denied Singh’s motion to reopen the case on ground that it was untimely filed. The judge again concluded that Singh’s ineffectiveness claim was an insufficient basis to negate the filing deadline for a motion to be reopened. In addition, the judge determined that Singh did not show a reasonable likelihood that the outcome of his removal proceedings would have been different had prior counsel’s representation not been deficient. The judge noted that the consequences for failing to depart, including with respect to adjustment of status, had been explained to Singh, and he indicated that he understood.

With respect to his new claim for adjustment of status based on a bona fide marriage, the judge noted that it appeared that Singh was statutorily ineligible because he had failed to depart voluntarily after agreeing to do so. The judge also found that Singh failed to show by clear and convincing evidence that his marriage to Sonia Lee Croote was bona fide.

With respect to his cancellation of removal claim, the judge also found that even if his motion to reopen was not time-barred, Singh failed to put forward his argument first and foremost that he had 10 years’ residence in the U. S., or a qualifying relative who would suffer exceptional or extremely unusual hardship if he were removed. With respect to his new claim for asylum, the judge considered whether Singh established that reopening was warranted under the statutory exception to the time limit for asylum application. The judge ruled that the new evidence did not show changed country conditions in Guyana that affected his eligibility for asylum.

Singh again appealed to the Board of Immigration Appeals. But on August 5, 2010, the board dismissed the appeal, determining that the judge’s factual findings were not clearly erroneous, and affirmed and adopted the legal conclusions.