Abraham Kalilu v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION MAY 10 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABRAHAM F. KALILU, No. 11-72124
Petitioner,
v. Agency No. A098-132-223
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
ABRAHAM F. KALILU, AKA No. 12-70546
BUBACARR BAHAGA
Petitioner, Agency No. A098-132-223
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
ABRAHAM F. KALILU, No. 12-72865
Petitioner,
Agency No. A098-132-223
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2016**
Seattle, Washington
Before: GILMAN,*** RAWLINSON, and CALLAHAN, Circuit Judges.
Petitioner Abraham F. Kalilu, a native and citizen of Liberia, petitions for
review of three decisions rendered by the Board of Immigration Appeals (BIA)
following an immigration judge’s (IJ’s) denial of Kalilu’s application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). All three cases have been consolidated in this appeal. In the course of his
asylum proceedings, Kalilu lied about the date on which he entered the United
States in order to make his application for asylum timely. This falsehood was
discovered by the Department of Homeland Security in the course of a routine
fingerprint check, which revealed that Kalilu had been arrested inside the United
States almost a year before his stated date of entry. Kalilu eventually admitted to
the arrest, to knowingly misrepresenting his date of entry, and to procuring a
fraudulent refugee document from Guinea in order to bolster his asylum claim. As
**
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the United
States Court of Appeals for the Sixth Circuit, sitting by designation.
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a result, the IJ found Kalilu’s application “frivolous” and denied his claims for
relief. The BIA rendered the first decision relevant to this appeal in June 2011,
when it affirmed the IJ’s frivolousness determination. In January 2012, the BIA
issued a second decision that denied Kalilu’s motion to reconsider its June 2011
decision, which Kalilu based on claims of ineffective assistance of counsel. The
BIA then issued a third decision in August 2012 in which it denied Kalilu’s motion
to reconsider its January 2012 decision. Kalilu now petitions for review of all
three BIA decisions. For the reasons set forth below, we deny review.
Kalilu first contends that the frivolousness determination made by the IJ and
upheld by the BIA did not comport with the procedural requirements enumerated
in Matter of Y-L-, 24 I. & N. Dec. 151 (BIA 2007). To the contrary, both the IJ’s
and the BIA’s analyses soundly support a frivolousness determination. Under
Matter of Y-L-, a frivolousness determination is permissible where (1) the applicant
received notice of the consequences of filing a frivolous application, (2) the IJ
makes a specific finding of frivolousness, (3) the determination is supported by a
preponderance of the evidence, and (4) the applicant is given sufficient opportunity
to account for any discrepancies in his or her application. Id. at 155-60. This four-
part procedural requirement was adopted by this court in Ahir v. Mukasey, 527
F.3d 912, 917 (9th Cir. 2008).
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Consistent with Matter of Y-L-, Kalilu received proper notice of the
consequences of filing a frivolous application. In fact, Kalilu signed a statement
confirming that those consequences had been orally explained to him by a United
States Citizenship and Immigration Services asylum officer. The IJ also made a
specific finding that Kalilu had knowingly filed a frivolous asylum application
based on Kalilu’s own admissions that he had fabricated the date of entry in order
to comply with the one-year filing deadline, and that he had perpetuated this
fabrication in his asylum interview and at his removal hearing.
Kalilu’s admissions, coupled with official documentation showing that he
had been arrested nearly a year prior to his stated date of entry, satisfy the
requirement to prove by a preponderance of the evidence that the fabrication was
knowing and material. Finally, Kalilu was given ample opportunity to account for
his fabrications at a hearing specifically dedicated to examining the inconsistencies
in his application. Because the four procedural requirements of Matter of Y-L-
have been met, we deny Kalilu’s petition for review on this basis.
Kalilu next argues that the BIA abused its discretion in denying his motion
to reopen on the basis of ineffective assistance of counsel. This argument is
likewise without merit. In order to prevail on this claim, Kalilu must prove that
any deficiencies in his counsels’ actions were prejudicial and thus would have
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altered the outcome of the case. See Maravilla Maravilla v. Ashcroft, 381 F.3d
855, 858 (9th Cir. 2004).
Kalilu cannot show prejudicial error as a result of the actions of any of his
six previous attorneys because the IJ’s determination was not influenced by any
conduct or omissions by his attorneys. It was instead based squarely on Kalilu’s
own admissions of knowing deceit. The actions or inactions of his attorneys would
not have altered the outcome of the case, and therefore the BIA correctly
concluded that Kalilu’s ineffective-assistance claim is meritless. Accordingly, the
BIA did not abuse its discretion when it denied Kalilu’s consolidated motion to
reopen and reconsider its prior decision based on claims of ineffective assistance of
counsel.
For the reasons stated above, we DENY REVIEW of all three petitions
consolidated in this appeal.
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