Iuliu Ioan Albu v. Eric H. Holder, Jr. ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2864
IULIU IOAN ALBU,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
On Petition for Review of a Final Order of
the Board of Immigration Appeals.
No. A 097 599 836
ARGUED FEBRUARY 10, 2014 — DECIDED AUGUST 5, 2014
____________________
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
KENDALL, District Judge. *
WOOD, Chief Judge. Petitioner Iuliu Ioan Albu is a Roma-
nian citizen who applied for asylum in the United States in
2003. His application would have been deficient in a number
*Of the Northern District of Illinois, sitting by designation.
2 No. 13-2864
of ways, but at the prompting of his attorney he decided to
solve that problem by papering over his shortcomings with
lies. When his deceit came to light, he found himself on the
business end of 8 U.S.C. § 1158(d)(6), which makes any per-
son who files a frivolous asylum application permanently
ineligible for any immigration benefits whatsoever. He was
placed in removal proceedings, and in due course both the
Immigration Judge (IJ) and Board of Immigration Appeals
(BIA) applied section 1158(d)(6)’s statutory bar and denied
him cancellation of removal. He has petitioned for review of
that decision, but we find no error, and so we deny his peti-
tion.
Albu arrived in the United States from Romania in 1999.
Sometime between then and 2003, he retained a California
attorney named Jagprit Sekhon to file an asylum application
on his behalf. Sekhon, it turned out, was a specialist in the
field of false asylum applications; in 2009 he was convicted
of asylum fraud for filing more than 1200 false applications.
See News Release, “3 Sacramento attorneys receive lengthy
sentences in asylum fraud scheme investigated by ICE HSI,”
Immigration & Customs Enforcement (Sept. 24, 2010),
http://www.ice.gov/news/releases/1009/100924
sacramento.htm (last visited August 5, 2014). The Romanian
interpreter who worked with Albu was convicted in the
same prosecution.
In Albu’s case, Sekhon did more than just shore up his
client’s claim of a well-founded fear of persecution. He be-
gan by falsely alleging that Albu was arrested and beaten by
Romanian police on account of his Hungarian background
and Pentecostal religion. There was a grain of truth there:
Albu was indeed of Hungarian descent, but he did not con-
No. 13-2864 3
vert to Pentecostalism until he arrived in the United States,
and he never suffered official mistreatment in Romania on
that basis. Sekhon also falsified Albu’s date of entry into the
United States in order to avoid the statutory requirement
that asylum applications be filed within one year of entry.
See 8 U.S.C. § 1158(a)(2)(B). Before Albu met with an asylum
officer for an interview in California (because Sekhon had
also falsely represented that Albu lived there rather than at
his real home in Illinois), Sekhon gave Albu the fraudulent
application and told him to memorize the details. Albu com-
plied.
Albu’s signed application contained the warning, “Appli-
cants determined to have knowingly made a frivolous appli-
cation for asylum will be permanently ineligible for any ben-
efits under the Immigration and Nationality Act.” On top of
that, when he attended his asylum interview Albu signed an
oath stating that he knew that he was required to tell the
truth under penalty of perjury, and that he would be “per-
manently ineligible for any benefits under the Immigration
and Nationality Act if [he] knowingly made a frivolous ap-
plication for asylum.” He was accompanied by a Romanian
interpreter at this interview. The interpreter certified on the
form containing Albu’s oath that he had interpreted the
warning into Romanian for Albu.
Albu kept the ruse up long enough to gain an initial rec-
ommendation of approval from the Department of Home-
land Security (DHS). Things began to unravel, however, be-
fore Albu was granted final approval. For reasons that are
unexplained but that probably relate in part to the investiga-
tion of fraud that led to Sekhon’s conviction, DHS held Al-
bu’s application for seven years. When Albu did not attend a
4 No. 13-2864
second asylum interview scheduled in San Francisco for Sep-
tember 2010, DHS cancelled his recommended approval and
issued a Notice to Appear in the Immigration Court in Chi-
cago. He conceded removability before the IJ and withdrew
his asylum application. In its place, he filed an application
for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
The IJ ordered Albu removed. He applied the frivolous
asylum application bar over Albu’s argument that, although
he knew the application was false, he did not understand the
consequences of filing a false application because they were
written in English, a language he did not understand. He
further argued that although the interpreter indicated that
he had translated the warnings, that interpreter was convict-
ed as part of Sekhon’s asylum-fraud ring and therefore had
an incentive to lie about whether he had warned Albu of the
consequences of filing a false application. Albu testified that
he did not recall whether the interpreter gave the warnings
in Romanian, but the IJ found incredible any testimony to
the effect that Albu did not know the application was false or
that he did not know the consequences of lying. The IJ held
in the alternative that even if the frivolous-application bar
did not apply, Albu had not met the burden of establishing
eligibility for cancellation of removal.
The BIA affirmed with a short opinion, largely adopting
the IJ’s finding that the frivolous-application bar applied and
holding that the IJ did not commit clear error in making an
adverse credibility determination. See 8 C.F.R.
§ 1003.1(d)(3)(i) (establishing BIA standard of review). The
BIA did not address whether Albu had made the necessary
showing of eligibility for cancellation of removal without re-
gard to the frivolous-application bar.
No. 13-2864 5
We review legal determinations of the BIA, and the IJ to
the extent they are adopted by the BIA, de novo. Duron-Ortiz
v. Holder, 698 F.3d 523, 526 (7th Cir. 2012). We will uphold
factual determinations if they are supported by “reasonable,
substantial, and probative evidence on the record considered
as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Under 8 U.S.C. § 1158(d)(6),
If the Attorney General determines that an alien has
knowingly made a frivolous application for asylum
and the alien has received the notice under paragraph
(4)(A), the alien shall be permanently ineligible for
any benefits under this chapter, effective as of the
date of a final determination on such application.
Paragraph (4)(A) in turn requires that at the time an asylum-
seeker files an application, the Attorney General shall “ad-
vise the alien of the privilege of being represented by coun-
sel and of the consequences, under paragraph (6), of know-
ingly filing a frivolous application for asylum.” 8 U.S.C.
§ 1158(d)(4)(A). According to Department of Justice regula-
tions, an application is frivolous if “any of its material ele-
ments is deliberately fabricated.” 8 C.F.R. § 1208.20.
Whether an application is false is a question of fact, as is
the question whether that falsehood was material and made
knowingly. Siddique v. Mukasey, 547 F.3d 814, 816 (7th Cir.
2008). Albu does not contend that he was unaware of the lies
in his application, nor does he argue that they were immate-
rial. Instead, he rests his entire petition on the rule that an
applicant must have received notice of the severe conse-
quences of filing a false application before those conse-
6 No. 13-2864
quences can be applied. See 8 U.S.C. § 1158(d)(4)(A); see also
Matter of Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007).
Normally, warnings given on the application itself or at
the time of the asylum interview are enough to satisfy this
requirement. See Pavlov v. Holder, 697 F.3d 616, 618 (7th Cir.
2012); see also Cheema v. Holder, 693 F.3d 1045, 1048–50 (9th
Cir. 2012); Ribas v. Mukasey, 545 F.3d 922, 929–30 (10th Cir.
2008). Though Albu was warned at both junctures, this case
presents the added (but not uncommon) wrinkle of his lim-
ited English proficiency—a problem that was explicitly ab-
sent from Pavlov. See 697 F.3d at 618–19 (explaining that the
IJ did not credit Pavlov’s argument that he did not under-
stand English, because he testified in perfect English and de-
clined a translator when offered).
Even so, Albu had an interpreter with him at his asylum
interview, and the interpreter represented to the government
that he translated the warnings. Albu now tries to raise
doubts about the honesty of the interpreter’s representation;
he suggests that the interpreter had an incentive to keep Al-
bu in the dark and lie to the government, in order to prevent
Albu from revealing that the application was deceitful and
thus exposing the Sekhon ring’s scheme. But the question
whether the warnings were translated is one of fact that the
IJ was entitled to resolve. He did so by finding that the trans-
lation took place, and that finding is supported by substan-
tial evidence in the record. The documentary evidence indi-
cated that the warnings were translated; Albu testified only
that he could not recall whether this was the case, not that
they definitively were not. At any rate, the IJ made a finding
that Albu was not credible, and this finding is well within
the realm of reason.
No. 13-2864 7
Albu also asserts that his due process rights were violat-
ed during his removal proceedings. Noncitizens have a Fifth
Amendment right to due process in immigration proceed-
ings. Reno v. Flores, 507 U.S. 292, 306 (1993). When an immi-
gration statute guarantees a petitioner a fair hearing, howev-
er, and that statute has been followed, this court generally
will not find an unconstitutional deprivation of due process.
Kadia v. Gonzales, 501 F.3d 817, 824 (7th Cir. 2007). Albu had a
full hearing. He nonetheless argues that the IJ deprived him
of due process by focusing on the “wrong facts” when decid-
ing whether he received warning of the consequences of fil-
ing a false application. This claim, however, is indistinguish-
able from a straightforward claim that the IJ’s decision was
not supported by substantial evidence on the record. Albu is
complaining not of a deficiency in the process, but of an al-
legedly incorrect determination on the merits. We have al-
ready dealt with that argument, and so will conclude by say-
ing only that we find no deprivation of due process on this
record.
The petition for review is DENIED.