432 F.

3d 533

Bhupinder SINGH, Petitioner

v.
Alberto R. GONZALES,1 Attorney General of the United
States; Bureau of Immigration & Customs Enforcement; Kent
Frederick, District Director, Philadelphia District Immigration
and Customs Enforcement Respondents.
No. 04-4261.

United States Court of Appeals, Third Circuit.

Argued December 5, 2005.
January 3, 2006.

COPYRIGHT MATERIAL OMITTED Christine J. Sabas (Argued),

Lewisburg, PA, for Petitioner.
Peter Keisler, Assistant Attorney General, Civil Division, Mary Jane
Candaux, Senior Litigation Counsel, Melissa Neiman-Kelting, Attorney
(Argued), Office of Immigration Litigation, United States Department of
Justice, Ben Franklin Station, Washington, D.C., for Respondent.
Before RENDELL, FISHER, and VAN ANTWERPEN, Circuit Judges.
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.

Petitioner, Mr. Bhupinder Singh, seeks review of the decision of the Board of
Immigration Appeals ("BIA") determining that he is removable as an
aggravated felon under 8 U.S.C. 1227(a)(2)(A)(iii), and a subsequent BIA
decision affirming without opinion the denial by the Immigration Judge ("IJ")
of his claims for withholding of removal and protection under the Convention
Against Torture ("CAT"). We will deny the petition.

I.
2

Singh is a native and citizen of India who immigrated to the United States in

1999, and obtained lawful permanent resident status. On January 30, 2001,
Singh was driving in Lancaster County, Pennsylvania. When another motorist
made an obscene gesture at him, he responded by pointing a BB gun at the
driver. Local police pulled him over and arrested him based on the incident. He
was charged, in relevant part, with simple assault under 18 Pa. Cons.Stat. Ann.
2701(a)(3), and recklessly endangering another person under 18 Pa.
Cons.Stat. Ann. 2705. On August 21, 2001, Singh pled guilty to, and was
convicted of, both offenses in the Lancaster County Court of Common Pleas.

As a result of these convictions, on September 15, 2001, the then-Immigration

and Naturalization Service2 ("INS") served Singh with a Notice to Appear
charging him with removability under sections 237(a)(2)(A)(i) and (iii) of the
Immigration and Nationality Act ("INA"), 8 U.S.C. 1227(a)(2)(A)(i) & (iii).
Section 1227(a)(2)(A)(i) renders aliens removable if they have committed
certain crimes involving moral turpitude, while 1227(a)(2)(A)(iii) provides
for removal of aliens who have committed an aggravated felony as defined in
INA 101(a)(43), 8 U.S.C. 1101(a)(43). Singh moved to terminate his
removal proceedings on the basis that his convictions were neither crimes of
moral turpitude nor aggravated felonies. On July 23, 2003, an IJ in
Philadelphia, Pennsylvania determined that both crimes were aggravated
felonies, but neither were crimes involving moral turpitude. The IJ denied
Singh's motion to terminate removal proceedings and ordered him removed. He
was then placed in detention in York, Pennsylvania. Accordingly, venue was
changed to York.

Following the change of venue, Singh received a merits hearing at which a new
IJ again determined that neither crime involved moral turpitude, but also that
neither was an aggravated felony. The IJ accordingly terminated the removal
proceedings against Singh on October 20, 2003, whereupon the INS appealed
to the BIA. The BIA sustained the appeal on March 1, 2004, ruling that both
crimes, simple assault and recklessly endangering another person, were
aggravated felonies, thereby again rendering Singh removable. The BIA did not
enter a final order of removal, but instead remanded the case to allow Singh
opportunity to seek relief from removal by applying for withholding of removal
and protection under the CAT.

At his June 3, 2004 hearing before the IJ, Singh presented his claims for
withholding of removal and CAT relief. He claimed that as an ethnic Sikh, he
would face persecution upon return to India, and specifically, upon return to
Punjab, a Sikh state within India. Singh testified that he feared arrest and loss of
his life should he return to India, based on the fate of two uncles who had been
members of the Akali Dal, a movement seeking an independent Sikh state. He

called as a witness a third uncle who testified that the other uncles had been
arrested in 1984. This third uncle also testified that he feared for Singh's safety
in India because Singh would be likely to support the Akali Dal, and would be
immediately recognizable as a Sikh because of his surname. The uncle
conceded that Singh's parents had been members of the Akali Dal, but had
never been arrested. The 2003 Country Report on India current at the time of
Singh's hearing noted that the violence and disappearances in Punjab during the
1990s had ended, and that while some sporadic human rights abuses may still
occur, they are sparse.
6

The IJ found that Singh had not shown a clear probability of persecution with
respect to his claim for withholding of removal, nor, regarding his claim for
CAT relief, that it was more likely than not that he would be tortured.
Accordingly, the IJ ordered him removed to India.

On July 2, 2004, Singh filed an appeal with the BIA, 3 claiming that (1) the IJ
violated his Fifth Amendment right to due process by limiting him to
examining just one of the three witnesses he sought to call, and (2) that his
application for relief from removal was denied in error. The BIA affirmed
without opinion on October 7, 2004. Singh's petition for review in this Court,
filed on November 8, 2004, is timely. Singh has also timely sought review of
the BIA's March 1, 2004 determination in the Government's appeal to the BIA
that his past criminal convictions constituted aggravated felonies, as well as the
due process and relief from removal claims he raised in his own subsequent
BIA appeal.4

II.
8

Under the REAL ID Act, our jurisdiction encompasses "constitutional claims or

questions of law raised upon a petition for review." REAL ID Act, 106(a)(1)
(A)(iii), Pub.L. No. 109-13, 119 Stat. 231, 310 (2005), codified at 8 U.S.C.
1252(a)(2)(D); Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005).5
This represents an enlargement of our jurisdiction over final orders of removal
issued against aggravated felons, which, prior to enactment of REAL ID, was
proscribed by 8 U.S.C. 1252(a)(2)(C).6 Whether Singh's convictions are
aggravated felonies under 8 U.S.C. 1227(a)(2)(A)(iii) presents a question of
law within our subject matter jurisdiction. Singh's due process claims are
constitutional in nature, and within our jurisdiction under the REAL ID Act.
Finally, we have jurisdiction under 8 U.S.C. 1252(a)(2)(D) to consider
Singh's CAT and withholding of removal claims to the extent they present
questions of law, or of the application of law to undisputed fact. See Kamara v.
Att'y Gen., 420 F.3d 202, 211 (3d Cir.2005) (finding that court of appeals had

jurisdiction under REAL ID Act to review legal determinations and application

of law to fact under the CAT).
III.
9

We first determine whether Singh is removable as an aggravated felon under 8

U.S.C. 1227(a)(2)(A)(iii), and conclude that he is. For purposes of the INA, 8
U.S.C. 1101(a)(43) defines "aggravated felony" to include a wide array of
offenses; relevant to this case is subsection (F), which brings "a crime of
violence [defined in 18 U.S.C. 16] for which the term of imprisonment [is] at
least one year" within the ambit of the definition. In turn, 18 U.S.C. 16
defines "crime of violence" as:

10

(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or

11

(b) any other offense that is a felony and that, by its nature, involves a
substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.

12

The present question is whether simple assault under 18 Pa. Cons.Stat. Ann.
2701(a)(3), or recklessly endangering another person under 18 Pa. Cons.Stat.
Ann. 2705-the crimes for which Singh was convicted-are crimes of violence
within 18 U.S.C. 16, and, therefore, aggravated felonies under the INA, 8
U.S.C. 1101(a)(43).

13

The BIA's interpretation of 18 U.S.C. 16 is not entitled to deference by this

Court: as a federal criminal provision outside the INA, it lies beyond the BIA's
area of special expertise. Tran v. Gonzales, 414 F.3d 464, 470 (3d Cir.2005);
Francis v. Reno, 269 F.3d 162, 168 (3d Cir.2001). We exercise plenary review
over the BIA's purely legal determination that Singh's convictions for simple
assault and recklessly endangering another person were aggravated felonies.
Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002). With this in mind, we
turn to the Pennsylvania crimes of which Singh has been convicted, and
conclude that his conviction for simple assault qualifies as an aggravated
felony, but that his conviction for recklessly endangering another person does
not.

14

As an initial matter, we note that both crimes were misdemeanors under

Pennsylvania law; thus, neither could be a "felony" under 16(b), which relies
on the state's grading of the offense to determine whether it is a "felony."

Francis, 269 F.3d at 168-70. Therefore, we consider whether either conviction

was for an offense "that has as an element the use, attempted use, or threatened
use of physical force against the person or property of another" under 16(a).7
The underlying facts of the conviction are not relevant; rather, we must "look to
the elements and the nature of the offense of conviction" when determining
whether it is a crime of violence.8 Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct.
377, 160 L.Ed.2d 271 (2004).
15

To qualify as a "crime of violence" within 18 U.S.C. 16(a), a criminal statute

must require a mens rea of specific intent to use force; mere recklessness is
insufficient. Tran, 414 F.3d at 470 (citing United States v. Parson, 955 F.2d
858, 866 (3d Cir.1992)). We have held that another section of the Pennsylvania
simple assault statute, 18 Pa. Cons.Stat. Ann. 2701(a)(1), which states that "
[a] person is guilty of assault if he . . . attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another," requires no more than
a mens rea of recklessness, and therefore does not describe a crime of violence
within the meaning of 16(a). Popal v. Gonzales, 416 F.3d 249, 254-55 (3d
Cir.2005) (citing Tran, 414 F.3d at 472). It is not dispositive that the crime may
be proven by a showing of specific intent-all that is necessary to place it outside
16(a) is that it could also be established with proof of a lesser mens rea.

A.
16

The section of the Pennsylvania simple assault statute under which Singh was
convicted reads: "A person is guilty of assault if he . . . attempts by physical
menace to put another in fear of imminent serious bodily injury." 18 Pa.
Cons.Stat. Ann. 2701(a)(3). In contrast to our classification of 2701(a)(1) in
Popal, 2701(a)(3) is a crime of violence within 18 U.S.C. 16(a) because it
"has as an element the use, attempted use, or threatened use of physical force
against the person or property of another." Under Pennsylvania law, simple
assault as set forth in 2701(a)(3) is a specific intent crime. See
Commonwealth v. Fry, 341 Pa.Super. 333, 491 A.2d 843, 844 (1985) (noting
that specific intent is a necessary element under 2701(a)(3)); Commonwealth
v. Gouse, 287 Pa.Super. 120, 429 A.2d 1129, 1133 n. 3 (1981) (same). The
language of (a)(3) dictates this result: the word "attempt" necessarily involves a
mental state of specific intent. It is well-established that attempt cannot be
established without a mental state of specific intent. See Knapik v. Ashcroft, 384
F.3d 84, 91 (3d Cir.2004) ("the concept of an attempted recklessness crime is
nonsensical"); cf. Commonwealth v. Geathers, 847 A.2d 730, 734 (2004)
(holding crime of attempted murder requires specific intent).

17

Furthermore, the requirement of 18 U.S.C. 16(a) that the elements of a "crime

of violence" include "use, attempted use, or threatened use of physical force"

plainly encompasses the term "physical menace" in 2701(a)(3). Under
Pennsylvania law, "physical menace" requires some physical act by the
perpetrator intended to cause "fear of imminent serious bodily injury" in the
victim. See, e.g., Commonwealth v. Reynolds, 835 A.2d 720, 726 (2003)
(pointing gun constituted "menacing or frightening activity" that placed victims
"in fear of imminent serious bodily injury" under 2701(a)(3)); Commonwealth
v. Little, 418 Pa.Super. 558, 614 A.2d 1146, 1148 (1992) (physical menace
accomplished under 2701(a)(3) where "appellant erratically emerged from her
home carrying a shotgun, shouting and advancing from her porch" causing
officers to become fearful of imminent bodily injury). "Physical menace" refers
to physical acts committed to threaten another with corporeal harm. An attempt
to distinguish between such acts and the concept of "the use, attempted use, or
threatened use of physical force" employed by 16(a) would be meaningless.
We cannot reasonably conceive of a situation wherein such an act of "physical
menace," intended to place another in fear of imminent serious bodily injury,
would not, at the very least, constitute the attempted or threatened use of
physical force contemplated by 18 U.S.C. 16(a).9
18

Singh argues that Commonwealth v. Little, 418 Pa.Super. 558, 614 A.2d 1146
(1992), and Commonwealth v. Hudgens, 400 Pa.Super. 79, 582 A.2d 1352
(1990), present applications of 2701(a)(3) that do not involve the use of
physical force, but we are unable to agree. In Little, the defendant, responding
to attempts by officers to serve her with a foreclosure notice, several times
emerged from her house carrying a shotgun in the cradle of her arm. 614 A.2d
at 1147-48. She ordered them to leave her property, and at one point
approached within three to six feet of an officer while carrying the gun. Id. at
1147. The officers feared for their safety, radioed for back-up, and ultimately
left, having refrained from getting near enough to hand the papers to the
defendant. Id. The Superior Court of Pennsylvania held that this established
simple assault by physical menace under 2701(a)(3). Id. at 1148. We cannot
see how this holding helps Singh: commanding officers to leave the premises
while holding a shotgun is a threat of force that carries a grave implication of
serious physical harm. Little does not present an instance of 2701(a)(3)
physical menace that does not also amount to a threatened use of force under 18
U.S.C. 16(a). Likewise, Hudgens is of no help to Singh. There, the defendant
brandished a sword at the victim, and even touched him with it, and this
constituted "physical menace." Hudgens, 582 A.2d at 1355. Such a form of
physical menace is, quite plainly, also a use or threatened use of physical force
under 16(a).

19

Accordingly, we hold that simple assault as defined by 18 Pa. Cons.Stat. Ann.

 2701(a)(3) requires specific intent to use, threaten to use, or attempt to use

force against an individual, and is therefore a crime of violence within 18
U.S.C. 16(a). Thus, it is an aggravated felony under 8 U.S.C. 1101(a)(43),
which defines the term as it is used in 8 U.S.C. 1227(a)(2)(A)(iii), rendering
Singh removable.
B.
20

In contrast, the Pennsylvania offense of recklessly endangering another person,

18 Pa. Cons.Stat. Ann. 2705, is not a crime of violence within 18 U.S.C.
16(a) because it requires a mens rea of no more than recklessness. Section 2705
provides that "[a] person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury." (Emphasis added). As we held in
Tran, crimes that require no more than a mens rea of recklessness are not 16
crimes of violence.

21

Nevertheless, because Singh's conviction for simple assault is a crime of

violence under 18 U.S.C. 16(a), it is an aggravated felony for purposes of 8
U.S.C. 1227(a)(2)(A)(iii). He therefore remains removable under that section.

IV.
22

Singh argues that he was denied due process because he could not examine all
the witnesses he proposed to call during the June 3, 2004 hearing concerning
his withholding of removal and CAT claims. He also claims that he did not
understand the questions posed to him on direct examination, and that this also
denied him due process. Neither claim has merit. We exercise plenary review
over procedural due process claims. Bonhometre v. Gonzales, 414 F.3d 442,
446 (3d Cir.2005), petition for cert. filed, No. 05-8015 (U.S. Oct. 13, 2005).
Aliens are "entitled to a full and fair hearing of [their] claims and a reasonable
opportunity to present evidence." Chong v. Dist. Dir., INS, 264 F.3d 378, 386
(3d Cir.2001). To prevail on such claims, an alien must show substantial
prejudice. Bonhometre, 414 F.3d at 448.

23

Singh has shown no prejudice as a result of the alleged shortcomings in his June
3, 2004 hearing before the IJ. He argues that he would have presented
testimony from his parents to support his withholding and CAT claims, but
nowhere suggests that such testimony would have tended to establish past
persecution, or a fear of persecution or torture, nor that it would have been
anything other than cumulative. Regarding his claim that he did not understand
questions from counsel, the record shows that Singh was able to convey his fear

of torture and persecution, and that the IJ understood his testimony and took it
as establishing his subjective fear. Furthermore, the record indicates that
Singh's counsel did not object to the IJ's suggestion that the testimony be
limited to his uncle. Nor did Singh's counsel raise any concerns about Singh's
testimony: when the IJ indicated that Singh had established his subjective fears,
and would "leave it at that," his counsel responded only with "[t]hat's fair."
App. 61. Singh does not point to, and we cannot discern any prejudice in these
aspects of the hearing.10 Accordingly, his due process claims must fail.
V.
24

Singh also challenges the BIA's determination that he did not establish his
claims for withholding of removal under 8 U.S.C. 1231(b)(3)(A) and the
CAT under 8 C.F.R. 208.16(c)(2).11 As stated in section II, supra, the REAL
ID Act grants us jurisdiction to review constitutional claims and questions of
law. 8 U.S.C. 1252(a)(2)(D). We have also held that this includes review of
the BIA's application of law to undisputed fact. See Kamara, 420 F.3d at 21011 (court of appeals has jurisdiction after REAL ID Act to review the
application of law to undisputed fact in the CAT claim of an alien convicted of
an aggravated felony). We exercise plenary review over the BIA's legal
determinations, affording Chevron12 deference to its reasonable interpretations
of statutes it is charged with administering. Id. at 211. The Government does
not address the merits of Singh's claims in this respect. Singh merely
recapitulates his due process arguments, claiming an inability to present his
case. He does not question the IJ's determination of the law or its application to
the facts of the case. Having determined in section IV, supra, that there was no
due process violation and that the facts of his case were fairly presented and
adjudicated, we can find no argument by Singh that the IJ erroneously
determined the law or misapplied it. Accordingly, we find that his withholding
of removal and CAT claims lack merit.

VI.
25

For the foregoing reasons, we conclude that Singh is removable under 8 U.S.C.
1227(a)(2)(A)(iii) as an aggravated felon, and that his due process rights have
not been violated. His CAT and withholding of removal claims lack merit. We
will therefore deny his petition.

Notes:
1

Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as

Attorney General of the United States, pursuant to Fed. R.App. P. 43(c)(2)

2

As of March 1, 2003, the functions of the INS were assumed by the Bureau of
Citizenship and Immigration ServicesSoltane v. United States Dept. of Justice,
381 F.3d 143, 145 n. 1 (3d Cir.2004).

This was Singh's first appeal to the BIA in the case, though it was the second
appeal overall because the Government had previously successfully appealed to
the BIA following the October 20, 2003 ruling that he was not an aggravated
felon under the INA

This Order was not final when rendered by the BIA on March 1, 2004 because
it remanded the case to allow Singh to apply for relief from removal. It became
final, and amenable to our jurisdiction, following the BIA's October 7, 2004
affirmance

The Government moved on March 11, 2005 to dismiss Singh's petition for lack
of jurisdiction. Subsequently, the REAL ID Act was enacted on May 11, 2005,
after Singh received a final administrative order, and after he filed the present
petition. However, Congress clearly intended REAL ID 106(a)(1)(A)(iii) to
"apply to any case `in which the final administrative order of removal,
deportation, or exclusion was issued before, on, or after the date of
enactment.'"Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005)
(quoting REAL ID Act 106(b)). Singh's final order of removal was issued
"before, on, or after the date of enactment"; we therefore now have jurisdiction
to consider his petition for review, and will deny the Government's March 11,
2005 Motion to Dismiss. Because we reach the merits of Singh's case, we will
also deny the Government's November 22, 2005 Motion to Vacate and
Remand.

Prior to enactment of the REAL ID Act, we did have limited "jurisdiction to

determine our jurisdiction under [8 U.S.C. 1252(a)(2)(C)] with respect to both
of the predicate facts required for application of [ 1252(a)(2)(C)]-first,
whether a petitioner is in fact an alien, and, second, whether he or she is indeed
removable by reason of having been convicted of one of the enumerated
offenses in [ 1252(a)(2)(C)]."Papageorgiou, 413 F.3d at 357 (citations and
quotations omitted).

Under 18 U.S.C. 16(a), it does not matter that the state criminal code does not
characterize the offense as a felony; rather, the key inquiry is whether it "has as
an element the use, attempted use, or threatened use of physical force against
the person or property of another," 18 U.S.C. 16(a), and "for which the term
of imprisonment [is] at least one year." 8 U.S.C. 1101(a)(43)(F);see also
Francis v. Reno, 269 F.3d 162, 169 (3d Cir.2001) (noting that section 16(a)

does not look to state grading of crime). The parties do not dispute that Singh
received a sentence of at least one year for his convictions.
8

We need not reach the question we raised in an unrelated immigration

case,Singh v. Ashcroft, 383 F.3d 144, 161-62 (3d Cir.2004); namely, whether
we must look to the underlying facts of the conviction in order to determine
which portion of a disjunctively-phrased statute afforded the basis of the
judgment. Here, though the reckless endangerment statute, 18 Pa. Cons.Stat.
Ann. 2705, is disjunctive, we find for reasons set forth infra, section III.B,
that no aspect of it describes a crime of violence under 18 U.S.C. 16(a).

Our holding inBovkun v. Ashcroft, 283 F.3d 166, 170 (3d Cir.2002), supports
our conclusion here. In that case, we held that the Pennsylvania crime of
terroristic threats as codified at the time at 18 Pa. Cons.Stat. Ann. 2706 (West
1998) met the 18 U.S.C. 16(a) definition of a crime of violence. Id. We so
held because 2706 required that the perpetrator "threaten[ ] to commit any
crime of violence," and could find no Pennsylvania case construing that term
that did not "have as an element `the use, attempted use, or threatened use of
physical force against the person or property of another.'" Id. (quoting 18
U.S.C. 16(a)). The present case is the same: as discussed, we can neither find
nor conceive of any reasonable iteration of "physical menace" that would not
amount to "the use, attempted use, or threatened use of physical force."

10

Singh claims that separation from his family in the United States is prejudice.
While we acknowledge that such a result is indeed regrettable, it is not
prejudice in the sense of affecting the outcome of his proceedingSee United
States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir.2002) (prejudice
entails the possibility of causing a different outcome); Kuciemba v. INS, 92
F.3d 496, 501 (7th Cir.1996) (same).

11

We review the IJ's decision on these issues as the decision of the BIA, which
affirmed without opinionSee Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002).

12

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984).