Ahmed Mohamed v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AHMED SHEH MOHAMED, No. 18-70318
Petitioner, Agency No. A202-098-001
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 6, 2019**
Portland, Oregon
Before: PAEZ and RAWLINSON, Circuit Judges, and WU,*** District Judge.
Petitioner Ahmed Sheh Mohamed, a native and citizen of Somalia, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision finding that he filed a frivolous
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
asylum application and denying his application for asylum and relief under the
Convention Against Torture (“CAT”), but granting withholding of removal. Our
jurisdiction is governed by 8 U.S.C. § 1252.
“A ‘determination that an applicant knowingly made a frivolous application
for asylum’ is reviewed de novo ‘for compliance with [the] procedural framework
outlined by the BIA.’” Kulakchyan v. Holder, 730 F.3d 993, 995 (9th Cir. 2013)
(quoting Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010)). “‘Whether the IJ
properly applied the regulatory framework is a question of law,’ id., and therefore is
reviewed de novo.” Id. (quoting Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir.
2013)). We deny petition.
An individual who knowingly files a frivolous asylum application is
permanently ineligible for any benefit under the INA, other than withholding of
removal. See 8 U.S.C. § 1158(d)(6). “[A]n asylum application is frivolous if any of
its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. A
misrepresentation is material when it “tends to shut off a line of inquiry which is
relevant to the alien’s eligibility and which might well have resulted in a proper
determination that he be excluded.” Matter of D-R-, 27 I. & N. Dec. 105, 112 (BIA
2017) (quoting Matter of Bosuego, 17 I. & N. Dec. 125, 127 (BIA 1980)).
The IJ and BIA properly found that Mohamed fabricated a material element
of his asylum application when he concealed his prior residence in South Africa. An
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applicant who has “firmly resettled” in a third country prior to arriving in the United
States is ineligible for asylum. 8 C.F.R. § 208.13(c)(2)(i)(B). Mohamed’s
misrepresentation shut off a line of inquiry regarding whether his residence in South
Africa rendered him ineligible for asylum based on the firm resettlement doctrine,
regardless of what the outcome of such an inquiry would have been. Mohamed’s
omission was therefore material, and the IJ and BIA properly found that he had filed
a frivolous asylum application.
Moreover, the IJ did not erroneously base her frivolousness finding on
Mohamed’s criminal conviction for knowingly making a false statement under oath
of a material fact in his asylum application, in violation of 18 U.S.C. § 1546(a).
Rather, in addressing whether Mohamed deliberately fabricated a material assertion
in his asylum application, the IJ relied on the fact that Mohamed’s prior residence in
South Africa may have meant that the firm resettlement doctrine applied in his case.
The IJ explained that she found herself bound by the behavior underlying the
conviction (i.e. Mohamed’s concealment of his time in South Africa) as well as his
admission of both the concealment and the materiality of that concealment, and not
that she found herself bound merely by the conviction itself. The IJ therefore made
the requisite “specific[] find[ing] that [Mohamed] knowingly filed a frivolous
asylum application” under the BIA regulations. See 8 C.F.R. § 1208.20.
For the reasons stated above, we DENY Mohamed’s petition for review.
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