Goraya v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION AUG 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARJINDERJIT SINGH GORAYA, No. 07-70686
Petitioner, Agency No. A079-281-912
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 15, 2010
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, **
Senior District Judge.
Petitioner Harjinderjit Singh Goraya petitions for review of the Board of
Immigration Appeals’s (“BIA”) dismissal of his appeal of an Immigration Judge’s
(“IJ”) decision granting the Department of Homeland Security’s (“DHS”) motion
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
to reopen his proceedings, revoking his grant of asylum, and ordering him
removed. We have jurisdiction under 8 U.S.C. § 1252(a) and we deny the petition.
A motion to reopen must proffer new evidence that “is material and was not
available and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.23(b)(3). Goraya argues that the IJ abused her discretion in
granting DHS’s motion to reopen, contending that DHS did not satisfy these
requirements. We review the Agency’s ruling on a motion to reopen for abuse of
discretion. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150-51 (9th Cir. 2010).
The IJ did not abuse her discretion in concluding that DHS proffered
material evidence of fraud. DHS provided evidence that Boota Singh Basi and
Kashmir Singh Mahli had prepared Goraya’s asylum application, and that they had
pled guilty to running a criminal enterprise that prepared fraudulent asylum
applications. This evidence included a sworn statement by Basi that Goraya’s
application contained materially false information, including a false story that
Mahli and Basi had created. This was sufficiently material evidence of fraud to
warrant reopening. See Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003)
(quoting In re S-V, 22 I. & N. Dec. 1306 (BIA 2000)) (“[W]e have reopened
proceedings ‘where the new facts alleged, when coupled with the facts already of
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record, satisfy us that it would be worthwhile to develop the issues further at a
plenary hearing on reopening.’”).
Nor did the IJ abuse her discretion in concluding that the evidence was not
previously available and could not have been discovered or presented earlier.
Although Goraya had indicated to the IJ during his merits hearing that Basi had
made some misrepresentations in Goraya’s written application, the grant of asylum
to Goraya predated the government’s discovery of the extent of Basi and Mahli’s
fraud, the raiding of their office, and the securing of their guilty pleas and Basi’s
testimony. The IJ therefore did not abuse her discretion in granting the motion to
reopen.
As for the merits, DHS had the burden to prove, by a preponderance of the
evidence, that “there is a showing of fraud in [Goraya’s] application such that he . .
. was not eligible for asylum at the time it was granted.” 8 C.F.R. § 1208.24(a)(1)
& (f). Goraya argues that the IJ erred in relying on Basi’s testimony because it was
unfounded and unreliable, the preparer work folder was incomplete, and Basi’s
cooperation agreement made his testimony involuntary. We must uphold the
Agency’s factual finding that the asylum application was fraudulent “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see Sang Yoon Kim v. Holder, 603 F.3d 1100, 1102 (9th Cir.
3
2010) (providing that the Agency’s factual findings are reviewed for substantial
evidence).
Goraya’s objections to the reliability of the preparer work folder, Basi’s
status as a convicted felon, and the reliability of Basi’s testimony go to the weight
of the evidence and credibility of Basi’s testimony — issues properly within the
domain of the factfinder. Basi testified extensively about the process by which he
and his partner Mahli created fraudulent asylum applications, and specifically
explained that he had created a false story of persecution on which Goraya relied in
his written application and oral testimony. Goraya did not dispute that Basi and
Mahli prepared his application. The IJ and BIA properly re-assessed Goraya’s
earlier oral testimony in light of the new evidence provided by Basi, considered
Basi’s credibility and any incentive he may have had to testify falsely, and
determined that Goraya was not entitled to asylum at the time it was granted.
Because a reasonable factfinder would not have been compelled to conclude
otherwise, we conclude that the Agency’s finding of fraud was supported by
substantial evidence.
PETITION FOR REVIEW DENIED.
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