Pavel Pavlov v. Eric Holder, Jr. ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3384
P AVEL P AVLOV,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
A RGUED S EPTEMBER 17, 2012—D ECIDED O CTOBER 1, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. Pavel Pavlov, a citizen of
Bulgaria, entered the United States in 2000 on a
nonimmigrant visa and did not depart when it expired.
In 2006 he filed an application for asylum. The applica-
tion was false in almost every particular, starting with
Pavlov’s assertion that he had entered the United States
in 2005. (This was designed to fool the agency into be-
2 No. 11-3384
lieving that the application was timely, for aliens have
only one year after entry to request asylum. 8 U.S.C.
§1158(a)(2)(B).) Pavlov asserted that he had been perse-
cuted in Bulgaria because he is a gypsy. He swore that
multiple attacks had broken his ribs and collarbone
and knocked out two of his teeth and that he was
“running out of body parts that have not been touched
by the hatred and the violence.” He repeated this story
in May 2006 during an interview with an asylum officer.
About a year after Pavlov sought asylum, his wife,
recently naturalized as a citizen of the United States,
asked immigration officials to adjust his status to that of
permanent resident. At a hearing in March 2007 Pavlov
withdrew his application for asylum, acknowledged
that he entered in 2000 rather than 2005, and conceded
that he is not a gypsy and was not persecuted in Bul-
garia. This left him without entitlement to remain in
the United States (for his visa had expired in 2001), but
the immigration judge deferred proceedings to allow
processing of his wife’s application on his behalf.
At a later hearing the IJ ordered Pavlov’s removal,
concluding that he is ineligible for adjustment of status
given 8 U.S.C. §1158(d)(6). This provides that “[i]f the
Attorney General determines that an alien has know-
ingly 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 [the Immigration and Nationality Act], effective
as of the date of a final determination on such applica-
tion.” Paragraph (4)(A) says that the Attorney General
No. 11-3384 3
must “advise the alien of the privilege of being repre-
sented by counsel and of the consequences, under para-
graph (6), of knowingly filing a frivolous application for
asylum”. The IJ found that Pavlov had received the
required notice yet had filed a frivolous application. That
renders him ineligible for any immigration benefit. The
Board of Immigration Appeals agreed with the IJ, but
Pavlov asks us to vacate the order of removal.
Pavlov acknowledges that the application for removal
was frivolous, so we need not determine what kinds of
falsehoods or shortcomings in an application make it
“frivolous.” He contends, however, that §1158(d)(6)
applies only when an alien asks an immigration judge
to grant asylum. If that is so, an alien would be entitled
to make a frivolous application and maintain it for
years—extending his stay in the United States, and
forcing the agency to expend resources investigating the
claim—provided that he dropped the application and
sought different relief at the outset of the hearing. Yet
§1158(d)(6) prescribes adverse consequences when “an
alien has knowingly made a frivolous application for
asylum” (emphasis added). Pavlov made his application
in 2006. That he did not repeat his allegations in front of
an immigration judge does not detract from the fact that
he “knowingly made a frivolous application for asylum”.
This leads Pavlov to concentrate on the warning re-
quirement of §1158(d)(4)(A). Only a warning from
the IJ suffices, he contends. What §1158(d)(4)(A) says,
however, is that the Attorney General must deliver
the warning. When the Department of Homeland
4 No. 11-3384
Security was created, many of the Attorney General’s
responsibilities (including this one) were transferred
to United States Citizenship and Immigration Services.
That agency warned Pavlov twice: once in the original
application form, and a second time before the interview
in May 2006. The warning, set out in 8 C.F.R. §208.9,
reads (boldface in original):
WARNING: Applicants who are in the United
States illegally are subject to removal if their
asylum or withholding claims are not granted
by an Asylum Officer or an Immigration Judge.
Any information provided in completing this
application may be used as a basis for the in-
stitution of, or as evidence in, removal proceed-
ings even if the application is later withdrawn.
Applicants determined to have knowingly made
a frivolous application for asylum will be perma-
nently ineligible for any benefits under the
Immigration and Nationality Act.
This language complies with the statute and, because
it was delivered by the Attorney General’s surrogate,
supports disqualification under §1158(d)(6). At least two
other courts of appeals have concluded that delivery of
this warning in the application itself, or at the time of
the interview, suffices. Ribas v. Mukasey, 545 F.3d 922 (10th
Cir. 2008); Cheema v. Holder, 2012 U.S. App. L EXIS 18742
(9th Cir. Sept. 6, 2012). This court said the same thing
in Siddique v. Mukasey, 547 F.3d 814 (7th Cir. 2008). If it
was not a holding then, it becomes a holding now.
Practical considerations support applying the statutory
No. 11-3384 5
text as written. Frivolous applications for asylum
require investigation and divert time that could be put
to use addressing serious claims by honest applicants.
Section 1158(d)(6) is designed to prevent aliens from
creating these costs—and helping themselves to
additional time in the United States—during the months
or years before an immigration judge convenes a hearing.
Pavlov insists that he did not “knowingly” make a
frivolous application, because he simply signed a blank
form handed to him by a private immigration-aid
group, which later filled in the spurious details. The IJ
did not believe him. Substantial evidence supports the
IJ’s conclusion. After all, Pavlov repeated his factual
assertions orally before an asylum officer; that can’t be
blamed on anyone else. The IJ also disbelieved Pavlov’s
assertion that he does not understand English. The IJ
observed that Pavlov testified in excellent English and
declined an offer of a translator’s assistance. Pavlov, who
lied in 2006 in order to get immigration benefits, can’t be
surprised when an immigration judge concludes that
he has told new lies in an effort to avoid the con-
sequences of the old lies. He has revealed a propensity
to put self-interest ahead of his legal obligation to tell
the truth. Cf. Alsagladi v. Gonzales, 450 F.3d 700 (7th
Cir. 2006).
Pavlov makes some additional arguments, such as a
contention that the IJ improperly amended the notice
to appear and impeded his opportunity to adduce evi-
dence. The agency asserts that these contentions were
not presented to the BIA. We need not discuss any
6 No. 11-3384
subject on which Pavlov failed to exhaust his administra-
tive remedies. His reply brief says that he did present
these arguments to the Board but does not cite to any
portion of the record that would support his assertion.
This forfeits any opportunity to demonstrate that the
exhaustion requirement has been satisfied.
The petition for review is denied.
10-1-12