Kalilu v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABRAHAM F. KALILU, 
Petitioner, No. 06-75425
v.
 Agency No.
A98-132-223
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 3, 2007—San Francisco, California
Filed February 14, 2008
Before: Dorothy W. Nelson, Stephen Reinhardt, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
1369
KALILU v. MUKASEY 1371
COUNSEL
Socheat Chea, Esq., Duluth, Georgia, for the petitioner.
Peter D. Keisler, Esq., Linda S. Wendtland, Esq., Holly
Smith, Esq., Office of Immigration Litigation, U.S. Depart-
ment of Justice, Washington, D.C., for the respondent.
OPINION
PER CURIAM:
Abraham Kalilu (“Kalilu”), a twenty-seven-year-old native
and citizen of Liberia, seeks review of the Board of Immigra-
tion Appeals’ (“BIA”) adverse decision determining that he
filed a frivolous asylum application, denying his claims for
asylum and withholding of removal, denying his request for
voluntary departure, and denying his motion to reopen. Peti-
tioner raises two principal challenges to the BIA’s decision.1
First, he argues that the BIA’s frivolousness determination
cannot be sustained because he was not afforded the required
procedural safeguards, including notice and an opportunity to
respond. Second, he argues that the BIA abused its discretion
in denying his motion to reopen so that he could have an
opportunity to pursue adjustment of status on the basis of his
1
Petitioner raises three additional challenges. We lack jurisdiction over
his claim that the BIA erred in denying his request for voluntary departure.
See 8 U.S.C. § 1229c(f); Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th
Cir. 2003). We also lack jurisdiction over a claim concerning the merits
of Petitioner’s asylum application because he did not challenge its denial
before the BIA. See 8 U.S.C. § 1252(d)(1); Vargas v. INS, 831 F.2d 906,
907-08 (9th Cir. 1987). Finally, substantial evidence supports the BIA’s
adverse credibility determination. See Chen v. Ashcroft, 362 F.3d 611, 617
(9th Cir. 2004). In the absence of credible testimony, Petitioner failed to
meet the high burden of proof required to establish eligibility for with-
holding of removal. See Duarte de Guinac v. INS, 179 F.3d 1156, 1159
(9th Cir. 1999).
1372 KALILU v. MUKASEY
marriage to a United States citizen. We have jurisdiction over
both of these claims pursuant to 8 U.S.C. § 1252, and we
grant the petition for review.
A.
[1] A determination that an applicant filed a frivolous asy-
lum application renders the applicant permanently ineligible
for immigration relief. 8 U.S.C. § 1158(d)(6). Petitioner con-
tends that the BIA erred in affirming the IJ’s frivolous asylum
application determination in his case. On April 25, 2007, the
BIA provided guidance for when an asylum application may
be found frivolous in accordance with the statute and govern-
ing regulation. See In re Y-L-, 24 I. & N. Dec. 151, 155 (BIA
2007). Since these guidelines were issued five months after
the BIA considered Petitioner’s appeal, we grant the petition
in part and remand so that the BIA may apply the standards
set forth in In re Y-L- to Petitioner’s case in the first instance.2
B.
Petitioner also argues that the BIA abused its discretion in
2
At oral argument, Petitioner’s counsel, relying on a recent Third Cir-
cuit decision, argued that the BIA erred as a matter of law in finding that
Petitioner filed a frivolous asylum application where his application was
denied as untimely. See, e.g., Luciana v. Attorney Gen., 502 F.3d 273, 280
(3d Cir. 2007). Luciana is distinguishable from the present case. In that
case, the BIA’s frivolousness determination was based on the petitioner’s
submission of an asylum application that contained a false story of her
alleged persecution in Indonesia. Luciana, 502 F.3d at 280 n.6. The Third
Circuit held that because the petitioner was statutorily time-barred from
filing her asylum application, the false story “was totally incapable of
influencing the decision-makers, and therefore it was not material.” Id. at
280. By contrast, in the present case, Petitioner’s falsehood (an inaccurate
date of entry) went to the very question of whether his application was
time-barred in the first instance. Unlike in Luciana, not only was this mis-
representation “[ ]capable of influencing the decision-makers[,]” it indeed
did influence the decision-makers, who initially adjudicated his asylum
application on the merits rather than denying it as untimely.
KALILU v. MUKASEY 1373
denying his motion to reopen. See Lara-Torres v. Ashcroft,
383 F.3d 968, 972 (9th Cir. 2004) (reviewing denial of motion
to reopen for abuse of discretion). The BIA held that Petition-
er’s motion to reopen “must be denied” because a newly-
enacted regulation clarified that, as an arriving alien, Peti-
tioner “must pursue any application for adjustment of status
with the United States Citizenship and Immigration Services
(USCIS) independent of [ ] removal proceedings.” See Eligi-
bility of Arriving Aliens in Removal Proceedings to Apply for
Adjustment of Status and Jurisdiction to Adjudicate Applica-
tions for Adjustment of Status, 71 Fed. Reg. 27585-592 (May
12, 2006) (codified at 8 C.F.R. §§ 1.1, 245.1, 245.2, 1001.1,
1245.1, 1245.2) (hereinafter “Interim Rule”). We agree that
the BIA’s denial of Petitioner’s motion to reopen solely on
jurisdictional grounds constitutes an abuse of discretion.3
[2] The Interim Rule upon which the BIA relied in denying
Petitioner’s motion to reopen was passed in response to the
decisions of four Courts of Appeal, including our own, hold-
ing that the Attorney General must provide an opportunity for
arriving aliens in removal proceedings to apply for adjustment
on the basis of a valid immigrant visa petition. See Succar v.
Ashcroft, 394 F.3d 8, 9 (1st Cir. 2005); Zheng v. Gonzales,
422 F.3d 98, 119 (3d Cir. 2005); Bona v. Gonzales, 425 F.3d
663, 670-71 (9th Cir. 2005); Scheerer v. U.S. Attorney Gen.,
445 F.3d 1311, 1318 (11th Cir. 2006). The opportunity that
the Interim Rule affords for an arriving alien in removal pro-
ceedings to establish his eligibility for adjustment based on a
bona fide marriage is rendered worthless where the BIA, as
it purports to do in the present case, denies a motion to reopen
(or continue) that is sought in order to provide time for
USCIS to adjudicate a pending application. Without a reopen-
3
We note that if, on remand, the BIA determines that Petitioner filed a
frivolous asylum application, this determination would preclude Petitioner
from eligibility to adjust his status. See 8 U.S.C. § 1158(d)(6) (rendering
an alien who files a frivolous asylum application permanently ineligible
for any future immigration benefits).
1374 KALILU v. MUKASEY
ing or a continuance, an alien is subject to a final order of
removal, despite the fact that he may have a prima facie valid
I-130 and adjustment application pending before USCIS. If an
alien is removed, he is no longer eligible for adjustment of
status. See 8 U.S.C. § 1182(a)(9)(A)(ii).
The BIA’s denial of Petitioner’s motion to reopen on juris-
dictional grounds is also contrary to the Board’s general pol-
icy of favorably exercising its discretion to grant motions to
reopen on the basis of an unadjudicated I-130 petition. See In
re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-57 (BIA 2002)
(en banc); Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA
1978), modified on other grounds by Matter of Arthur, 20 I.
& N. Dec. 475 (BIA 1992) (providing that “discretion should,
as a general rule, be favorably exercised where a prima facie
approvable visa petition and adjustment application have been
submitted in the course of a deportation hearing or upon a
motion to reopen.”).
[3] We therefore hold that the BIA abused its discretion in
denying Petitioner’s motion to reopen and remand for an
exercise of the agency’s discretion that takes into consider-
ation the factors set forth in Velarde-Pacheco. 23 I. & N. Dec.
at 256.4
4
Velarde-Pacheco provides that a “properly filed motion to reopen may
be granted, in the exercise of discretion, to provide an alien an opportunity
to pursue an application for adjustment where the following factors are
present: (1) the motion is timely filed; (2) the motion is not numerically
barred by the regulations; (3) the motion is not barred by Matter of Shaar,
21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4)
the motion presents clear and convincing evidence indicating a strong like-
lihood that the respondent’s marriage is bona fide; and (5) the Service
either does not oppose the motion or bases its opposition solely on Matter
of Arthur.” 23 I. & N. Dec. at 256.
We note that even if these factors are present, the decision of whether
or not to grant the motion to reopen remains within the BIA’s discretion.
See id. at 256 (explaining that “[e]very application necessarily requires
examination of the relevant factors and a determination of the weight such
KALILU v. MUKASEY 1375
C.
For the reasons set forth above, we DISMISS the petition
insofar as it seeks review of Petitioner’s claim to asylum and
request for voluntary departure over which we lack jurisdic-
tion, DENY the petition with respect to the agency’s denial of
withholding of removal, and GRANT the petition and
REMAND for the BIA to reconsider its frivolousness deter-
mination in light of In re Y-L- and for a renewed exercise of
the agency’s discretion with respect to Petitioner’s motion to
reopen.5
DISMISSED in part, DENIED in part, GRANTED and
REMANDED in part.
factors should be accorded in the exercise of discretion . . . .”). See also
71 Fed. Reg. at 27589 (comments published with “Interim Rule”) (“While
noting that it will ordinarily be appropriate for an immigration judge to
exercise his or her discretion favorably to grant a continuance or motion
to reopen in the case of an alien who has submitted a prima facie approv-
able visa petition and adjustment application in the course of a deportation
hearing . . . an immigration judge has discretion in an appropriate case to
deny a continuance . . . .”).
5
On remand, the agency may construe Petitioner’s motion as a motion
to continue, rather than a motion to reopen. A motion to continue may be
granted “for good cause shown.” 8 C.F.R. § 1003.29, while a motion to
reopen may be made “for the purpose of acting on an application for
relief[.]” 8 C.F.R. § 1003.23(b)(3). Because in this instance USCIS, rather
than the IJ, has jurisdiction to act on the underlying application for relief,
a motion for a continuance would likely be the more appropriate form in
which to consider Petitioner’s request.