Liu v. Holder

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 30, 2014
Elisabeth A. Shumaker
Clerk of Court
JIE LIU,
Petitioner,
v. No. 14-9543
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.
Jie Liu, a native and citizen of the People’s Republic of China, petitions for
review of the agency’s determination that she filed a frivolous asylum application.
Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny review.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Background
After Ms. Liu arrived in the United States in November 2007, she applied for
asylum in January 2008. Her application stated that (1) in 2000 she was subjected to
a forcible abortion, and (2) in 2007 she was arrested for practicing Christianity at a
home church and, while detained, she was beaten. On March 4, 2008, she had an
asylum interview, where she repeated her claims about the abortion, the arrest, and
the beating. The interview officer identified several inconsistencies in her testimony
and referred her case to an immigration judge (IJ) for further proceedings.
While her asylum case was pending, Ms. Liu married a United States citizen.
He filed on her behalf a Form I-130, Petition for Alien Relative, and she moved for a
continuance of the asylum case so that the agency could act on the petition. In
accordance with Matter of Hashmi, 24 I. & N. Dec. 785 (BIA 2009), the IJ held a
hearing to examine whether the marriage was bona fide and there was good cause for
a continuance. At the Hashmi hearing Ms. Liu admitted that portions of her asylum
application were exaggerated or incorrect, stating that her former attorney had told
her to include details that were not true. For example, although it was true that she
was arrested in 2007 after police raided a home church, “[n]othing really happened”
at the police station beyond questioning. Amend. Admin. R. at 168. She also
admitted that she knew that her application contained untrue information.
After these admissions the focus of the hearing turned to whether Ms. Liu had
filed a frivolous asylum application, because an alien who files a frivolous
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application is ordinarily forever barred from relief under the Immigration and
Nationality Act, see 8 U.S.C. § 1158(d)(6). After the government’s counsel began
exploring what had happened at Ms. Liu’s agency interview, she invoked her Fifth
Amendment privilege against self-incrimination.
Ultimately, the IJ found all the necessary elements to apply the
frivolous-application bar, see In re Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007), and
ruled that Ms. Liu therefore was ineligible for adjustment of status. He ordered her
removed to China. The Board of Immigration Appeals (BIA) agreed with the IJ and
dismissed the appeal.
Analysis
Before this court, the only element of the frivolous-application bar that is at
issue is notice. For an alien to be subject to § 1158(d)(6), the Attorney General must
“[a]t the time of filing an application for asylum . . . advise the alien . . . of the
consequences . . . of knowingly filing a frivolous application for asylum.” 8 U.S.C.
§ 1158(d)(4)(A); see also In re Y-L-, 24 I. & N. Dec. at 155. Ms. Liu argues that the
agency erroneously concluded that she timely received the required notice.
The Form I-589 asylum application contains a written warning, immediately
above the applicant’s signature block, that “[a]pplicants determined to have
knowingly made a frivolous application for asylum will be permanently ineligible for
any benefits under the Immigration and Nationality Act.” Amend. Admin. R. at 321.
This court has held that this warning is sufficient, as a matter of law, to satisfy the
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notice requirement. See Ribas v. Mukasey, 545 F.3d 922, 928, 930 (10th Cir. 2008).
But Ms. Liu argues that this notice was insufficient in her case because she was
unable to speak or understand English at the time she submitted the asylum
application. Cf. id. at 930 (petitioner in Ribas “ma[de] no argument that he did not
speak English well enough to read the warning or that he did not understand the
warning”). She points to notes of the asylum interview indicating that she told the
interview officer that the translator had not read the entire asylum application to her,
but only her statement.1
Whether Ms. Liu understood the Form I-589 warning is a factual
determination and therefore is reviewed for substantial evidence, see Niang v.
Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). “Under the substantial-evidence
standard our duty is to guarantee that factual determinations are supported by
reasonable, substantial and probative evidence considering the record as a whole.”
Id. (internal quotation marks omitted). The agency’s factual findings “are conclusive
1
Ms. Liu has changed the focus of her arguments at each step of these
proceedings. Before the IJ, she urged (1) Ribas should not control, but instead the IJ
should apply Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008); and (2) the required
warning must be given by an IJ. She did not assert that she did not understand the
warning in the Form I-589 application. But before the BIA, she argued that (1) the
asylum officer’s notes did not reflect that she received the frivolous warnings and the
government did not call the officer to testify, (2) there was contradictory evidence (in
the form of the hearing notes) that she received the warning in the Form I-589
application, and (3) she never received a warning from the IJ. To the extent that she
now asserts arguments before this court that she did not exhaust before the BIA, we
lack jurisdiction to consider them. See Galvez Pineda v. Gonzales, 427 F.3d 833, 837
(10th Cir. 2005).
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unless any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
The IJ recognized that the person who prepared the application for Ms. Liu
signed the Form I-589 Part E declaration that “‘[t]he completed application was read
to the applicant in his or her native language or language he or she understands for
verification before he or she signed the application in my presence.’” Amend.
Admin. R. at 57-58 (quoting application, id. at 321). He also noted that Ms. Liu had
signed the frivolous-application warning in Part D of the application. He found that
“the inclusion of the warning on the 589 or asylum application coupled with the
attestation of translation and [Ms. Liu’s] signature . . . suffice[d] to demonstrate
[Ms. Liu] received the adequate warnings in this case.” Id. at 58. The BIA
“adopt[ed] and affirm[ed] the [IJ’s] thorough and well-reasoned decision.” Id. at 3.
Specifically on the issue of notice, it explained:
[Ms. Liu] filed an asylum application that required her to certify, under
penalty of perjury, to the truth contained in it and warned in clear,
conspicuous, bold lettering on the signature page that an applicant
“determined to have knowingly made a frivolous application for asylum
will be permanently ineligible for any benefits;” [Ms. Liu] signed the
signature page directly below the certification and warning and on the
next page before the asylum officer.
Id. at 4.
Substantial evidence supports the finding that Ms. Liu received the
frivolous-application warning at the time she signed the application. As the IJ stated,
the preparer/translator certified that she had read the application to Ms. Liu. While
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Ms. Liu’s statement at her asylum interview contradicts this evidence, the agency
was not bound to accept Ms. Liu’s statement. Further, as the BIA noted, the
application’s warning was renewed at the asylum interview. At that interview
Ms. Liu signed the Record of Applicant and Interpreter Oaths During An Interview
and Part F of the asylum application—both of which contained a frivolous-
application warning. Having received those warnings, she nevertheless chose to
proceed with the interview instead of immediately seeking to withdraw or revise her
application. The BIA was entitled to view this conduct as supporting its decision
because she was not deterred by the warning.2
2
The government argues in the alternative that even if Ms. Liu did not
understand the warning in the Form I-589 application, the asylum-interview warnings
provided “adequate notice through other, sufficient means.” Resp. Br. at 18; see also
id. at 21-25. We consider the interview warnings only as evidence to support the
finding that Ms. Liu received the frivolous-application warning when she first filed
her asylum application; we do not decide the government’s alternative assertion. See
Ribas, 545 F.3d at 930 (noting that “it is questionable whether [a warning given by
the IJ] provided any meaningful notice at all” because “it was provided after
[petitioner] had already filed the first application, for which he was sanctioned,” but
declining to decide the question).
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Conclusion
Because substantial evidence supports the agency’s finding that Ms. Liu
received the required notice at the time she completed her asylum application, the
petition for review is denied.
Entered for the Court
Harris L Hartz
Circuit Judge
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