Hazmik Kulakchyan v. Eric Holder, Jr. , 730 F.3d 993 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAZMIK BYUZAND KULAKCHYAN, No. 09-71185
Petitioner,
Agency No.
v. A079-262-811
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 26, 2013*
Pasadena, California
Filed September 18, 2013
Before: Diarmuid F. O’Scannlain and Morgan Christen,
Circuit Judges, and Brian M. Cogan,** District Judge.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Brian M. Cogan, U.S. District Judge for the Eastern
District of New York, Brooklyn, sitting by designation.
2 KULAKCHYAN V. HOLDER
SUMMARY***
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ decision affirming an immigration
judge’s determination that petitioner knowingly filed a
frivolous asylum application and that she was statutorily
barred from adjustment of status and a waiver under 8 U.S.C.
§ 1182(i) on that basis.
The panel held that there was substantial evidence in the
record to support the Board’s determination that petitioner
received adequate warnings about the potential consequences
for filing a frivolous asylum application, and that her
misrepresentations concerning her arrival date were material
to the asylum claim she filed and later withdrew.
The panel gave Chevron deference to the Board’s
decision in Matter of X-M-C-, 25 I. & N. Dec. 322 (B.I.A.
2010), which held that the only action required to trigger a
frivolousness inquiry is the filing of an asylum application
and that the Board is not prevented from finding that an
application is frivolous simply because the applicant
withdrew the application or recanted false statements.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
KULAKCHYAN V. HOLDER 3
COUNSEL
Areg Kazaryan, Glendale, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division;
Michelle Gorden Latour, Assistant Director; and Tracie N.
Jones, Attorney, United States Department of Justice, Civil
Division, Office of Immigration Litigation, Washington,
D.C., for Respondent.
OPINION
PER CURIAM:
Petitioner seeks review of the Board of Immigration
Appeals’ (“BIA”) order affirming the Immigration Judge’s
(“IJ”) decision declaring her asylum application frivolous.
For the reasons set forth below, the petition for review is
denied.
I
Petitioner, a native and citizen of Armenia, applied for
asylum and provided a false arrival date on both her
application and during her asylum interview. An asylum
officer denied petitioner’s application as time-barred after
discovering her actual arrival date and petitioner was placed
in removal proceedings. Petitioner eventually withdrew her
request for asylum, and instead sought an adjustment of status
and a waiver under 8 U.S.C. § 1182(i) (a “§ 212(i) waiver”).
The IJ granted the Department of Homeland Security’s
(“DHS”) motion to pretermit petitioner’s applications for
4 KULAKCHYAN V. HOLDER
adjustment of status and a § 212(i) waiver on the basis that
petitioner knowingly filed a frivolous asylum application.
The BIA affirmed the IJ’s determination that petitioner
knowingly filed a frivolous asylum application and that she
was statutorily barred from adjustment of status and a
§ 212(i) waiver on that basis.
II
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.” Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.
2010).1 “Whether the IJ properly applied the regulatory
framework is a question of law,” id., and therefore is
reviewed de novo. See Madrigal v. Holder, 716 F.3d 499,
503 (9th Cir. 2013). Administrative findings of fact,
meanwhile, “are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (quoting
8 U.S.C. § 1252(b)(4)(B)).
Petitioner does not contend that the content of the
warnings she received was inadequate, but rather argues only
that she did not receive “thorough” translations of these
warnings. But the evidence in the record is to the contrary.
1
The BIA’s framework requires compliance with the following
safeguards: (1) notice to the alien of the consequences of filing a frivolous
application; (2) a specific finding that the alien knowingly filed a frivolous
application; (3) sufficient evidence in the record to support the finding that
a material element of the asylum application was deliberately fabricated;
and (4) an indication that the alien has been afforded sufficient
opportunity to account for any discrepancies or implausible aspects of the
claim. See Matter of Y-L-, 24 I.&N. Dec. 151 (B.I.A. 2007).
KULAKCHYAN V. HOLDER 5
Petitioner’s application-preparer certified that the application
was read to her in her native language, and a separate
interpreter certified that she read the warnings to petitioner
with regard to the “Record of Applicant’s Oath During an
Interview.” The asylum officer’s notes confirm this. Thus,
there was substantial evidence in the record to support the IJ’s
and BIA’s findings that petitioner received the required
warnings.
Likewise, there is no merit in petitioner’s argument that
her misrepresentations concerning her entry date were
immaterial. This court has already concluded that a
misrepresentation in an asylum application about the date of
entry is material, commenting that the misrepresentation
“went to the very question of whether his application was
time-barred in the first instance.” Kailu v. Mukasey, 548 F.3d
1215, 1217 n.2 (9th Cir. 2008). And although petitioner
argues that her misrepresentation was immaterial because she
could have applied under the exception for changed or
extraordinary circumstances, 8 U.S.C. § 1158(a)(2)(D), the
fact remains that she never did so. Petitioner’s
misrepresentation was thus material to the asylum claim that
she did file; that she theoretically could have filed a different
claim is irrelevant.
Petitioner’s argument that she did not receive a sufficient
opportunity to explain her misrepresentations is also without
merit. After DHS filed a motion to pretermit petitioner’s
applications on November 26, 2006, petitioner filed an
opposition brief on March 6, 2007. Petitioner thus had
several months to craft her explanation in response to DHS’s
motion, and did so. Petitioner is also incorrect that the IJ and
BIA failed to give sufficient weight to her youth and lack of
sophistication. The IJ considered and rejected this argument,
6 KULAKCHYAN V. HOLDER
and made factually-supported findings that petitioner
“demonstrated a certain sophistication in misrepresenting”
the story of her entry.
III
In Chen v. Mukasey, 527 F.3d 935, 940–43 (9th Cir.
2008), we suggested that 8 U.S.C. § 1158(d)(6) likely permits
a finding of frivolousness even where an alien withdraws a
frivolous application, but remanded to the BIA to interpret the
statute in the first instance. The BIA has now held, in a
published opinion, that the “the only action required to trigger
a frivolousness inquiry is the filing of an asylum application”
and that the IJ and BIA “are not prevented from finding that
an application is frivolous simply because the applicant
withdrew the application or recanted false statements.”
Matter of X-M-C-, 25 I. & N. Dec. 322, 325–26 (B.I.A.
2010).
Even if 8 U.S.C. § 1158(d)(6) were ambiguous with
regard to this question, this Court nonetheless would owe
Chevron deference to the BIA’s published interpretation of a
statute. See Arteaga-De Alvarez v. Holder, 704 F.3d 730, 739
(9th Cir. 2012). The BIA’s interpretation of 8 U.S.C.
§ 1158(d)(6) is reasonable, and well-grounded in the policy
behind that statute, which is “to prevent petitioners from
making frivolous applications.” Chen, 527 F.3d at 943. We
therefore join several of our sister circuits in holding that
§ 1158(d)(6) permits a frivolousness finding based on a
withdrawn application. See Zheng v. Holder, 672 F.3d 178,
180 (2d Cir. 2012); Lazar v. Gonzales, 500 F.3d 469, 476–77
(6th Cir. 2007).
PETITION DENIED.