Issam Ghazali v. Eric H. Holder, Jr. ( 2009 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0377p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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ISSAM MOHAMAD GHAZALI,
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Petitioner,
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No. 08-4229
v.
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ERIC H. HOLDER, JR., United States Attorney
Respondent. -
General,
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On Petition for Review from an Order
of the Board of Immigration Appeals.
No. A95 457 939.
Argued: October 7, 2009
Decided and Filed: October 29, 2009
Before: DAUGHTREY, SUTTON and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Ronald E. Kaplovitz, KAPLOVITZ & ASSOCIATES, P.C., Sylvan Lake,
Michigan, for Petitioner. Patrick James Glen, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Ronald E. Kaplovitz,
KAPLOVITZ & ASSOCIATES, P.C., Sylvan Lake, Michigan, for Petitioner. Patrick James
Glen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
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OPINION
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SUTTON, Circuit Judge. Issam Mohamad Ghazali, a native and citizen of Lebanon,
argues that, once an immigration judge determines that an asylum petition is time barred, the
judge no longer has authority to determine that the application is frivolous. The Board of
Immigration Appeals disagreed, and so do we.
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I.
In 1999, Ghazali entered the United States on a non-immigrant visa with
authorization to stay until 2001. When Ghazali overstayed his stay, the Immigration and
Naturalization Service—now the Department of Homeland Security—initiated removal
proceedings against him. In 2004, an immigration judge found him removable.
Two years later, Ghazali filed an application for asylum, withholding of removal and
protection under the Convention Against Torture, all of which the immigration judge denied.
The judge rejected Ghazali’s withholding-of-removal and torture claims on the merits. He
then found Ghazali’s asylum application statutorily barred because Ghazali did not apply for
asylum within one year of entering the country, see 8 U.S.C. § 1158(a)(2)(B), and because
he previously received asylum in Switzerland, see id. § 1158(a)(2)(A). Even if the statutory
bars did not preclude relief, the judge added, the asylum claim still failed on the merits
because Ghazali did not provide credible testimony in support of it. Ghazali, the judge
reasoned, testified inconsistently with his own application, the testimony of his brother and
other documentary evidence, and offered no credible evidence to corroborate his version of
events.
The immigration judge separately determined that Ghazali deliberately fabricated
material portions of his testimony and that his asylum application was frivolous. See
8 C.F.R. § 1208.20. Before making the frivolousness finding, the immigration judge orally
warned Ghazali about the consequences of making a frivolous asylum application. And at
the hearing, after Ghazali testified inconsistently with the record evidence and with his
brother’s testimony, the judge gave him an opportunity to account for the discrepancies.
Unpersuaded by Ghazali’s efforts to account for these inconsistencies, the judge found that
Ghazali deliberately made up material elements of his testimony, noting: (1) the testimony
of Ghazali’s brother contradicted Ghazali’s statements that a gun battle occurred at his home
in Lebanon before he fled the country; and (2) Ghazali’s passport, which revealed that he
returned to Lebanon in 1992 and 1994, plainly contradicted Ghazali’s testimony that, once
he left Lebanon in 1986, he did not return until 1998 out of fear for his life. The
frivolousness finding made Ghazali “permanently ineligible” for asylum. See 8 U.S.C.
§ 1158(d)(6).
No. 08-4229 Ghazali v. Holder Page 3
The Board of Immigration Appeals affirmed the judge’s decision in all respects. As
to the frivolousness finding, the Board determined that the immigration judge complied with
the prerequisites for making such a finding by warning Ghazali of the consequences of filing
a frivolous application, giving him an adequate opportunity to explain himself, making a
specific finding of frivolousness and pointing to sufficient evidence in the record to support
the finding. See Matter of Y-L, 24 I&N Dec. 151, 155 (BIA 2007) (setting forth the
procedure that must be followed before an immigration judge may deem an application
frivolous).
Ghazali moved for reconsideration and for the first time argued that the immigration
judge had no authority to make a frivolousness finding once the judge determined that the
petition was time barred. The Board denied the motion on the merits, concluding in a written
order that the judge had authority to issue the time-bar ruling and find the application
frivolous. Ghazali seeks review of this last ruling (and only this last ruling) here.
II.
A word about jurisdiction is in order. The Immigration and Nationality Act strips
federal courts of jurisdiction to review decisions “specified under [8 U.S.C. §§ 1151-1381]
to be in the discretion of the Attorney General,” except for asylum determinations. 8 U.S.C.
§ 1252(a)(2)(B)(ii). We previously have reviewed the Board’s denial of a reconsideration
motion without considering whether it is committed to the Attorney General’s “discretion”
and thus subject to the jurisdiction-stripping provision. See, e.g., Sanusi v. Gonzales, 474
F.3d 341, 345 (6th Cir. 2007). Yet the Seventh Circuit recently held that the provision
eliminates appellate jurisdiction over denials of motions to reopen, see Kucana v. Mukasey,
533 F.3d 534, 539 (7th Cir. 2008), and a concurring opinion suggested that this reasoning
might extend to denials of motions to reconsider, id. at 539–40 (Ripple, J., concurring). The
Supreme Court has granted review of Kucana. See Kucana v. Holder, 129 S. Ct. 2075
(2009) (No. 08-911). Even if we accept for the sake of argument (though not argued by
either party) that § 1252 applies to motions for reconsideration, that would not preclude
review here. Ghazali’s petition raises a “question[] of law,” a statutory exception to the
jurisdiction-stripping provision, see 8 U.S.C. § 1252(a)(2)(D), Kucana, 533 F.3d at 538, one
unlikely to be affected by the Court’s decision in Kucana.
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As for the merits, Ghazali’s petition raises a new question: When an immigration
judge determines that an asylum application is time barred, does that preclude the judge from
also finding that the same application is frivolous? The Board answered no, and so do we.
Nothing in the statute says that an immigration judge may enter a frivolousness
finding only when the application is timely filed or otherwise free of statutory bars. All it
says is that an immigration judge may find an application frivolous upon determining that
an alien, on notice of the consequences of making a frivolous filing, “knowingly made a
frivolous application for asylum.” 8 U.S.C. § 1158(d)(6). The statute does not contain an
inflexible order of battle—to the effect that immigration judges must address the statutory
bars first and, once they do, may no longer make a frivolousness finding if a statutory bar
applies. The statute, indeed, does not confine the judge’s authority to make a frivolousness
finding only to the merits of the application, as opposed to the procedural hurdles that an
applicant must clear before the agency will consider his application. So far as the words of
the statute are concerned, they permit the immigration judge to make a frivolousness finding
about the merits of the asylum application (because the applicant, say, falsely claims that he
has a well-founded fear of persecution in his home country) and about the timeliness of it
(because the applicant, say, falsely claims that country conditions have changed, which
would otherwise excuse the one-year filing requirement).
Nor is the time-bar provision akin to a restriction on subject matter jurisdiction that
might require the immigration judge to address the procedural and substantive claims in a
prescribed sequence. Cf. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93–94 (1998)
(federal courts generally must address issues of subject matter jurisdiction before reaching
the merits of a claim). In this case, for example, the immigration judge reached the merits
of the asylum application in part as an alternative ground for decision. Ghazali points to
nothing in the statute that prohibits the judge from doing just that—or for that matter from
ruling on the merits rather than on a time-bar question if the merits offer a more
straightforward ground for decision. While federal judges generally may not assume away
a difficult question of subject matter jurisdiction in order to reach an easy merits
determination, see id., the immigration statutes place no comparable constraint on an
immigration judge.
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The statute, it is true, says that time-barred applications “may be considered” if the
alien shows changed circumstances, 8 U.S.C. § 1158(a)(2)(D), and that of course suggests,
in the absence of the exception, that the time bar applies. But that is not the same as
stripping the agency of jurisdiction to exercise its authority in a variety of ways: to issue
alternative rulings, to reach the merits question first or to make a frivolousness finding with
respect to a time-bar argument itself. Cf. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)
(If Congress “clearly states that a threshold limitation on a statute’s scope shall count as
jurisdictional, then courts and litigants will be duly instructed . . . . But when Congress does
not rank a statutory limitation . . . as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.”). Indeed, to treat the time bar as jurisdictional here seems
particularly odd given that the immigration judge plainly had jurisdiction to reach the merits
of Ghazali’s withholding-of-removal and CAT claims.
The implementing regulations also fail to place any such restriction on the
immigration judge. They likewise say that “an applicant is subject to” a frivolousness
determination upon a “specific[] find[ing] that the alien knowingly filed a frivolous asylum
application.” 8 C.F.R. § 1208.20. “[A]n asylum application,” they add, “is frivolous if any
of its material elements is deliberately fabricated.” Id. (emphasis added). So far as the
regulations are concerned, an immigration judge may make this finding whenever an alien
files a frivolous application, regardless of whether the judge ultimately denies the application
on statutory-bar or substantive grounds. The judge simply needs to ensure that the finding
relates to a “material” element of the application, id., one that was material at the time the
application was “made.” 8 U.S.C. § 1158(d)(6). All of that was true here, and so also was
it true that the judge met the other requirements of the regulations: He gave Ghazali notice
of the consequences of making a frivolous application, gave him an opportunity to respond
to the allegation of frivolousness and gave ample reasons for finding the application
frivolous.
Principles of administrative deference re-enforce this conclusion. “It is well settled
that . . . Chevron deference [applies] to” the Board’s interpretations of the Immigration and
Nationality Act, “as it gives ambiguous statutory terms concrete meaning through a process
of case-by-case adjudication.” Negusie v. Holder, ___ U.S. ___, 129 S. Ct. 1159, 1163–64
(2009) (internal citations omitted). Invoking the Attorney General’s authority to provide
No. 08-4229 Ghazali v. Holder Page 6
“controlling” answers to “questions of law” arising under the Act, 8 U.S.C. § 1103(a)(1), the
Board in this case expressly determined that an immigration judge could make a
frivolousness finding with respect to a time-barred application. “[N]othing in the statutory
or regulatory regime,” it concluded, “divest[s] . . . authority to make a finding of
frivolousness” on a statutorily barred application. J.A. 9. “[T]hat an asylum application is
subject to a bar,” it added, “does not mean that a deliberately fabricated element of the claim
is not ‘material’ within the meaning of 8 C.F.R. § 1208.20 . . . .[,] particularly since the
fabricated material element could also influence a grant of withholding of removal or
protection under the Convention Against Torture.” J.A. 9–10. The first explanation is
entitled to Chevron deference, as it reflects the Board’s reasonable construction of a statute
that Congress empowered the agency authoritatively to construe. Negusie, 129 S. Ct. at
1163–64. The second explanation is entitled to near-conclusive Seminole Rock deference,
as it reflects the Board’s construction of its own regulations, namely the meaning of
“material” elements of a claim. See Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414
(1945) (agency interpretation of its own regulation receives “controlling weight unless it is
plainly erroneous or inconsistent with the regulation”).
Not only is the Board’s position entitled to Chevron and Seminole Rock deference,
but it also has the virtue of being consistent with a premise of related case law in our circuit.
In the past, we have upheld frivolousness findings even after the petitioner offered to
withdraw an application voluntarily. The absence of an application, we held, “did not
obviate the need for the IJ to determine whether his false application should be deemed
frivolous.” Lazar v. Gonzles, 500 F.3d 469, 476 (6th Cir. 2007); see also Shllaku v.
Gonzales, 139 F. App’x 700, 701 (6th Cir. 2005). If Ghazali is right, one of the premises of
these cases must be wrong. For how are the deliberately fabricated elements of an
application any less “material” in today’s case than they are when the petitioner voluntarily
withdraws his application?
The Eleventh Circuit reads the statute and regulations the way we do. “[N]othing,”
it says, “divests an immigration judge of the authority to enter a ruling of frivolousness on
an application for asylum that was found to be untimely.” Mingkid v. U.S. Att’y Gen., 468
F.3d 763, 768 (11th Cir. 2006). The Eighth Circuit likewise has affirmed a frivolousness
No. 08-4229 Ghazali v. Holder Page 7
finding on a time-barred application, though it did not comment on the issue. Ignatova v.
Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005).
The Third Circuit sees it differently. See Luciana v. Att’y Gen. of the U.S., 502 F.3d
273, 280 (3d Cir. 2007). “[W]hether 8 U.S.C. § 1158 provides authority to issue a
frivolousness finding in the context of an untimely asylum application,” it says, “is far from
clear.” Id. Noting that the regulations require the judge to determine that the alien
“deliberately fabricated” a “material element[]” of his application, 8 C.F.R. § 1208.20, it
reasons that any deliberate fabrications “going to the merits of the application” are not
“material” because they cannot influence the disposition of an asylum application already
barred by statute. 502 F.3d at 280–81.
We cannot embrace this position. The Third Circuit did not consider a dispositive
ground for embracing the Board’s decision—agency deference—and may not even have had
a Board determination on the issue in front of it. (The parties’ briefs in the case, for what it
is worth, make no mention of the theory the Third Circuit embraced. See Brief for Petitioner,
Luciana, 502 F.3d 273 (No. 05-3544), 2005 WL 6061570; Brief for Respondent, Luciana,
502 F.3d 273 (No. 05-3544), 2006 WL 5411457).) By contrast, in this case, the Board
expressly rejected the Third Circuit’s reasoning, finding “nothing in the statutory or
regulatory regime” that supports its position. J.A. 10. The Third Circuit’s reasoning, as
shown, also is in tension with a premise of related case law in our circuit. Ghazali offers no
way to embrace the Third Circuit’s position without forsaking a premise of Lazar, and we
cannot think of one on our own.
The Third Circuit’s reliance on the regulatory requirement that the falsity relate to
a “material” aspect of the asylum application runs into another problem. If the Third Circuit
is right that a frivolousness finding is no longer “material” once the immigration judge
decides that it is time barred, the same would be true if the judge decided that the application
failed on a distinct merits ground, whether related to the underlying frivolousness finding or
not. For once that other ruling is a possibility, the same potential lack-of-materiality problem
raises its head. But immigration judges frequently offer a host of merits-related grounds for
rejecting an asylum application, and they should be permitted to do so without compromising
their authority to make a frivolousness finding when appropriate.
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In addition to the Third Circuit’s decision in Luciana, Ghazali offers two other bases
for reversing the Board, both unpersuasive. “[T]he time bar rule,” he claims, “divest[s] the
court from having jurisdiction to consider anything to do with an asylum claim” and thus
prevents an immigration judge from proceeding to consider the frivolousness of the
application. Ghazali Br. 12. The time-bar provision, it is true, does not disclaim the
possibility that the statutory bars are jurisdictional. See 8 U.S.C. § 1158(a)(2)(B). But
neither does it say they are. The immigration judge plainly had jurisdiction over the merits
of the asylum application at the time it was filed. And the reality that the judge identified
a time bar did not prohibit it from reaching the frivolousness question any more than it would
have prevented the judge from issuing an alternative merits ruling in the event his time-bar
ruling was incorrect. Cf. Arbaugh, 546 U.S. at 516.
Ghazali adds that denying his application is penalty enough, and the frivolousness
finding needlessly heaps on another penalty. But there is nothing gratuitous about this
penalty. Why should Ghazali, who filed an untimely frivolous application, be treated better
than an applicant who filed a timely frivolous application? Under Ghazali’s theory, he
would be free to file another application while the other applicant would not be, even though
the only difference between them is that the second applicant followed the Act’s timeliness
requirements. If Ghazali is right, no good deed goes unpunished. If he is wrong, as we think
he is, he gets his just deserts—at least relative to those who file timely, but fabricated,
applications.
A final word. To say that immigration judges may make a frivolousness finding in
the context of a time-barred application is not to say that they should. The finding has
serious consequences for the applicant, and there is reason to worry that applicants (and their
lawyers) may not defend themselves as well as they should in the context of an application
that already is going nowhere.
III.
For these reasons, we deny the petition for review.