Saliou Bah v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-1096
SALIOU BAH,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-689-974)
Immigration Judge: Charles Honeyman
________________
Submitted under Third Circuit LAR 34.1(a)
on October 3, 2017
Before: SHWARTZ and ROTH, Circuit Judges and PAPPERT*, District Judge
(Opinion filed: June 12, 2018)
OPINION **
________________
*
The Honorable Gerald J. Pappert, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge
Petitioner Saliou Bah, a native and citizen of Guinea, seeks review of a BIA
decision affirming the Immigration Judge’s (IJ) final order of removal and pretermission
and denial of Bah’s applications for adjustment of status and waiver of inadmissibility.
For the reasons stated below, we will deny in part and dismiss in part the petition for
review.
I.
Bah entered the United States on November 22, 1997 on a temporary business visa
and has remained in the country ever since. In 1999, Bah’s friend introduced him to an
unnamed individual who told Bah that he could help him obtain a work permit by falsely
claiming that Bah had been a slave in Mauritania. Instead, the individual prepared an
asylum application for Bah, which included a fabricated story about Bah being a
Mauritanian slave. The asylum application also falsely stated that Bah had entered the
United States on December 20, 1999, more than two years after his actual date of entry.
Bah signed and filed the fraudulent application, although he maintains that he always
believed he was applying for a work permit and did not understand that he was in fact
applying for asylum.
On August 30, 2000, Bah appeared before an Asylum Officer (AO) to be
interviewed under oath. The unnamed individual accompanied Bah to the interview and
served as Bah’s translator. The AO ultimately concluded that Bah had not provided clear
and convincing evidence of the date of his entry into the United States and therefore
2
denied his application as untimely. 1 The AO did not rule on the merits of Bah’s
application. The former Immigration and Naturalization Service then charged Bah with
removability and issued a notice to appear. Bah failed to appear at the hearing, and, in
absentia, the IJ ordered him removed.
In August of 2003, Bah married a U.S. citizen, Retonya Bah, who subsequently
gave birth to their U.S. citizen son. Based on his marriage to a U.S. citizen, Bah later
filed for adjustment of status, pursuant to 8 U.S.C. § 1255. After becoming aware of the
outstanding removal order, Bah also requested waivers of inadmissibility, pursuant to 8
U.S.C. § 1182(h), (i). Bah otherwise conceded removability.
On March 10, 2014, the IJ conducted a merits hearing. In a written opinion, the IJ
found that Bah had deliberately fabricated his date of entry in his asylum application, that
the fabricated date of entry was a material element of the application, and that Bah had
therefore knowingly filed a frivolous asylum application. The IJ thus concluded that Bah
was permanently ineligible for any benefits under the INA, pursuant to 8 U.S.C. §
1158(d)(6). 2 The IJ also concluded that, but for the frivolous filing bar, Bah’s application
would have merited adjustment of status and waiver of inadmissibility.
1
See 8 U.S.C. § 1158(a)(2)(B) (requiring that an alien seeking asylum “demonstrate[] by
clear and convincing evidence that the [asylum] application has been filed within 1 year
after the date of the alien’s arrival in the United States”).
2
“If the Attorney General determines that an alien has knowingly made a frivolous
application for asylum . . . the alien shall be permanently ineligible for benefits under this
chapter . . ..” § 1158(d)(6).
3
The BIA affirmed the IJ’s finding that Bah had filed a frivolous asylum
application and was thus barred from subsequent relief under § 1158(d)(6). The BIA
therefore dismissed Bah’s appeal. Bah petitioned this Court for review. 3
II.
On appeal to this Court, Bah raises two arguments. First, Bah argues that the BIA
erred by distinguishing the present case from this Court’s decision in Luciana v. Attorney
General, in which we held that a false statement going to the merits of an asylum
application cannot serve as the basis for finding the application to be frivolous when the
application is already time-barred. 4 Second, Bah argues that the BIA failed to correctly
apply its own standard for a frivolous finding, as set forth in Matter of Y-L-. 5 We address
each argument in turn. 6
A.
Bah asserts that our decision in Luciana controls in this case and that, pursuant to
that decision, his untimely asylum application may not be subject to the frivolous filing
penalty of § 1158(d)(6). The Attorney General contends that the BIA properly
distinguished Luciana, because in this case the IJ had applied the frivolous filing penalty
solely on the basis of Bah’s fabricated date of entry—a false statement bearing directly
3
We have jurisdiction over petitions for review of final agency decisions under
8 U.S.C. § 1252.
4
502 F.3d 273, 280 (3d Cir. 2007).
5
24 I. & N. Dec. 151 (B.I.A. 2007).
6
“We review the BIA’s legal conclusions de novo subject to the principles of deference
set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. . . ..” Mahn
v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014) (internal citation omitted).
4
on the timeliness of his application. We conclude that the BIA did not err in
distinguishing Luciana.
Luciana involved a petitioner who openly and indisputably filed her application
more than one year after her date of entry. 7 Thus, the IJ in that case necessarily
addressed timeliness as a threshold issue and sought to determine whether the petitioner’s
application fell under any of the narrow exceptions to the one-year filing requirement.
The IJ concluded that none of the exceptions applied and that the petitioner’s application
was therefore time-barred under § 1158(a)(2)(B). 8 After reaching this conclusion,
however, the IJ went on to consider the merits of the petitioner’s application. Finding
that the application included a fabricated statement that the petitioner had been stabbed
because of her religious beliefs, the IJ deemed the application to be frivolous and held
that the petitioner was subject to the lifetime bar to INA relief under § 1158(d)(6). 9 The
BIA affirmed.
On appeal, we found the frivolous filing penalty of § 1158(d)(6) to be
inapplicable. Our analysis focused on the definition of the term “frivolous” as used in
§ 1158(d)(6). The implementing regulations define a frivolous asylum application as one
in which “any of [the] material elements is deliberately fabricated.” 10 Although the word
“material” is not further defined in the regulations, the Supreme Court addressed its
7
Luciana, 502 F.3d at 274 (noting that Luciana testified that she had entered the U.S. in
December 2000 and Luciana’s asylum application was filed November 2, 2002).
8
Id. at 276.
9
Id.10
8 C.F.R. § 208.20.
5
meaning in Kungys v. United States, 11 a case involving revocation of citizenship under
the INA. The Court held that “a concealment or misrepresentation is material if it has a
natural tendency to influence, or was capable of influencing, the decision of the
decisionmaking body to which it was addressed.” 12 Applying this standard in Luciana,
we concluded that the petitioner’s false statement about being stabbed in her home
country could not be considered material to the adjudication of an application that was
untimely on its face and not subject to any of the exceptions to the one-year filing
requirement. 13 As we explained, “[o]nce it became clear that no exception applied,
[Petitioner’s] application had to be rejected as time-barred. Evidence going to the merits
of the application . . . was totally incapable of influencing the decision-makers, and
therefore it was not material.” 14 Because the asylum application did not include a
material fabrication, the application could not be considered frivolous under
§ 1158(d)(6).
Bah is incorrect in stating in his brief that our holding in Luciana “prohibits . . . a
frivolous finding for untimely / time[-]barred applications under [§ 1158(d)(6)].” Quite
the contrary, our reasoning in Luciana compels a different result in this case. Bah’s
asylum application was found to be frivolous solely on the ground that it included a
fabricated date of entry. The asylum application was adjudged to be untimely filed. In
the course of making that ruling, the AO took note of the date of entry provided by Bah
11
485 U.S. 759 (1988).
12
Id. at 770 (internal quotation marks omitted).
13
Luciana, 502 F.3d at 280.
14
Id.6
and considered whether Bah had provided sufficient evidence supporting his purported
entry. The fabricated date of entry was thus a misrepresentation that had “a natural
tendency to influence, or was capable of influencing, the decision of” 15 the AO. It was
therefore a material element of Bah’s asylum application that was deliberately fabricated,
rendering the application frivolous for purposes of § 1158(d)(6). 16 Our decision in
Luciana does not require a different outcome. We will thus deny the petition for review
as to this argument.
B.
Bah also argues that the BIA failed to correctly apply its own standard under
Matter of Y-L-, 17 which established a four-factor test for finding an asylum application to
be frivolous under § 1158(d)(6). 18 The IJ addressed each of these factors in his written
decision. 19 On appeal to the BIA, Bah argued only that the IJ erred in distinguishing
Luciana; he did not raise any other arguments regarding the IJ’s application of Matter of
Y-L-. 20 Thus, in its written opinion, the BIA focused on whether the IJ had properly
distinguished Luciana; the BIA did not address the IJ’s application of the Mattter of Y-L-
factors, other than providing a brief summary of the IJ’s opinion. 21
By declining to raise his arguments regarding the Matter of Y-L- factors before the
BIA, Bah failed to exhaust his administrative remedies with regard to these arguments.
15
Kungys, 485 at 770.
16
See 8 C.F.R. § 208.20.
17
24 I. & N. Dec. 151 (B.I.A. 2007).
18
Id. at 155-61.
19
See A.R. 65-66.
20
See A.R. 17-28 (Bah’s Appeal Brief to BIA).
21
A.R. 6-11.
7
As a result, we may not consider them. A petitioner must “raise[] all issues before the
BIA” in order to “exhaust[] all administrative remedies . . . and thereby preserve[] the
right of judicial review.” 22 Although, in removal cases, we do not apply the exhaustion
principle “in a draconian fashion,” 23 a petitioner must “make[] some effort . . . to place
the [BIA] on notice of a straightforward issue being raised on appeal.” 24 Bah’s brief to
the BIA includes no mention of the arguments based on Matter of Y-L- that he now raises
before this Court. 25 As a result, we lack jurisdiction to consider those arguments. 26 We
must therefore dismiss the petition for review as to this argument.
III.
For the aforementioned reasons, we will deny in part and dismiss in part the
petition for review.
22
Lin v. Att’y Gen., 543 F.3d 114, 120-21 (3d Cir. 2008) (internal quotation marks
omitted).
23
Id. at 121.
24
Joseph v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006).
25
In fact, in the portion of its opinion summarizing the IJ’s decision, the BIA expressly
noted that Bah did not contest the IJ’s application of several Matter of Y-L- factors. See
A.R. 6-7 (“The respondent does not contest that he received the requisite notice of the
consequences of filing a frivolous application . . .. The respondent does not challenge the
Immigration Judge’s finding that he knowingly made . . . misrepresentations in his
asylum application.”).
26
See Abdulrahman v. Ashcroft, 330 F.3d 587, 595 (3d Cir. 2003) (concluding this Court
lacks jurisdiction to consider an argument the petitioner failed to raise in any of his
written submissions to the BIA).
8