Suresh Vyas v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
JUL 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SURESH M. VYAS, AKA Swami Rajesh No. 13-72044
Vara Nand AKA Sureshwaranand Guru
Jagat Prak Shastri, AKA Swamisuresh Agency No. A077-433-885
Guru JP Shastri, AKA Sureshchandra
Vyas,
MEMORANDUM*
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 5, 2016**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BERZON and N.R. SMITH, Circuit Judges, and ZOUHARY,*** District
Judge.
Petitioner Suresh Vyas seeks review of a final order of the Board of
Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge
(“IJ”) denying his claims for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”), and determining that he had knowingly
filed a frivolous asylum application within the meaning of 8 U.S.C. § 1158(d)(6).
Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994),
and also provides its own review of the evidence and the law, we review both the
IJ’s and the BIA’s decision. See Ali v. Holder, 637 F.3d 1025, 1028-29 (9th Cir.
2011). We deny the petition.
1. The IJ’s determination that Vyas was not credible, which the BIA
adopted and affirmed, is supported by substantial evidence. See Rizk v. Holder,
629 F.3d 1083, 1087 (9th Cir. 2011). The IJ pointed to numerous inconsistencies
in Vyas’s testimony and written submissions. In particular, the IJ relied on Vyas’s
failure to disclose his 1994 and 1997 trips to the United States, as well as evidence
contradicting Vyas’s assertion that he had never returned to India since entering the
United States in 1998. The government and the IJ gave Vyas “a reasonable
opportunity to explain [these] perceived discrepancies,” Lei Li v. Holder, 629 F.3d
***
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
1154, 1159 (9th Cir. 2011), but Vyas did not provide a cogent answer. These
inconsistencies regarding Vyas’s repeated travel to and from India go to the heart
of his claim that he feared returning to India because of persecution he expected to
suffer there.1
2. The IJ denied relief on Vyas’s claims for asylum, withholding of
removal, and protection under the CAT based on his adverse credibility
determination. We therefore deny the petition as to those claims.
3. “We review a determination that an applicant knowingly made a
frivolous application for asylum for compliance with a procedural framework
outlined by the BIA.” Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010). In
In re Y-L, 24 I. & N. Dec. 151 (BIA 2007), the BIA established four procedural
requirements necessary for a finding of frivolousness. “First, an asylum applicant
must have notice of the consequences of filing a frivolous application. Second, the
IJ or Board must make specific findings that the applicant knowingly filed a
frivolous application. Third, those findings must be supported by a preponderance
of the evidence. Finally, the applicant must be given sufficient opportunity to
1
“[U]nder the REAL ID Act credibility findings no longer need to go ‘to the
heart of the applicant’s claim.’” Malkandi v. Holder, 576 F.3d 906, 918 (9th Cir.
2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “However, the relevant provisions
of that Act are not applicable to this case because [Vyas] applied for relief before
May 11, 2005.” Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005).
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account for any discrepancies or implausibilities in his application.” Ahir v.
Mukasey, 527 F.3d 912, 917 (9th Cir. 2008).
Each of these requirements was met. First, Vyas’s 1999 and 2005 asylum
applications each contained written warnings explaining that the filing of a
frivolous application would result in permanent ineligibility for immigration
benefits. This written warning constitutes adequate notice. Cheema v. Holder, 693
F.3d 1045, 1049 (9th Cir. 2012). Second, the IJ specifically “conclude[d] that
[Vyas]’s application was deliberately fabricated in almost every respect,” and that
accordingly each of the “criteria for imposing the bar of Section 208(d)(6) of the
Act” were satisfied. Third, the IJ’s finding that Vyas deliberately fabricated
material elements of his application is supported by a preponderance of the
evidence. Vyas could not account for substantial evidence directly contradicting
his assertion that he had never returned to India since arriving in 1998. Together
with the numerous other inconsistencies in Vyas testimony and filings, that
evidence provides ample support for the IJ’s finding. Finally, Vyas was given
sufficient opportunity to account for the discrepancies cited by the IJ. He was
questioned at length about his failure to disclose his 1994 and 1997 trips to the
United States, as well as about the 2003 visa applications, and he was unable give
any satisfactory explanation.
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We accordingly deny the petition as to Vyas’s claim that the IJ erred in
holding that Vyas had knowingly filed a frivolous asylum application.
DENIED.
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