Dhandayuthapani Thangavel v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
DEC 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DHANDAYUTHAPANI THANGAVEL, No. 13-74446
Agency No. A099-910-276
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 13, 2016**
San Francisco, California
Before: KOZINSKI, BYBEE and N.R. SMITH, Circuit Judges.
1. The agency’s adverse credibility finding was supported by substantial
evidence. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
Thangavel knowingly included in his original declaration an incident that didn’t
actually happen. See Singh v. Holder, 643 F.3d 1178, 1180 (9th Cir. 2011)
(“[I]ntentional deception toward the immigration authorities is culpable conduct
and one of several indications of dishonesty that casts doubt on the applicant’s
entire story.” (citation, internal quotation marks and square brackets omitted)).
Thangavel blames the misrepresentation on the unscrupulous actions of his
immigration consultant. But Thangavel testified he knew that the declaration
contained false information when he swore to its accuracy before the asylum
officer. Although he recanted the misrepresentation at the second merits hearing
before the Immigration Judge (IJ), it was too late. Thangavel’s deliberate
misrepresentation and other inconsistencies in his testimony, do not compel us to
reverse the agency’s adverse credibility finding.
2. Because the adverse credibility determination independently supports the
denial of Thangavel’s petition for asylum, we do not reach the agency’s alternative
holding that Thangavel failed to establish an objectively well-founded fear of
persecution. See Shrestha, 590 F.3d at 1048 n.6.
3. We lack jurisdiction to review Thangavel’s withholding of removal and
Convention Against Torture claims because he failed to challenge them to the
page 3
Board of Immigration Appeals (BIA). See 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004).
4. The agency did not err in finding that Thangavel filed a frivolous asylum
application because it complied with the procedural framework adopted in Ahir v.
Mukasey, 527 F.3d 912, 917 (9th Cir. 2008). Thangavel was sufficiently notified
of the consequences of filing a frivolous application by the written warning on his
asylum application. See Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012).
And the IJ’s specific finding that Thangavel had knowingly submitted a frivolous
application was supported by a preponderance of the evidence and properly
affirmed by the BIA. Ahir, 527 F.3d at 918.
When questioned about the made-up incident in his declaration, Thangavel
explained that he included it because his immigration consultant had assured him it
was just being “cited as an example” and wouldn’t cause a problem. The brief that
Thangavel filed after the conclusion of testimony afforded him further opportunity
to address his misrepresentation. See Kulakchyan v. Holder, 730 F.3d 993, 996
(9th Cir. 2013). That the IJ considered and rejected Thangavel’s explanation
doesn’t mean he was deprived of an adequate opportunity to explain his reasons for
page 4
filing a partially false application. See id. For this reason, Thangavel’s due
process argument also fails.
Nonetheless, Thangavel argues that the misrepresentation cannot be the
basis of a frivolousness finding because it wasn’t material and because he
submitted a new declaration before the merits hearing. Both arguments fail. The
fabricated story involved a person who was killed by the Rastrya Swanacvak
Sangam party despite fleeing to a different part of India and, therefore, directly
addressed whether Thangavel had demonstrated a well-founded fear of
persecution. See 8 C.F.R. § 1208.13(b)(2)–(3). Moreover, the submission of a
new declaration is irrelevant because even a withdrawn application may support a
frivolousness finding. Kulakchyan, 730 F.3d at 996. In any case, when he
submitted a new declaration, he didn’t retract his false declaration; he recanted the
misrepresentation in his original declaration only after the government reminded
him about perjury at the second merits hearing.
5. The BIA didn’t abuse its discretion by denying Thangavel’s motion to
remand. See Ocampo v. Holder, 629 F.3d 923, 925 (9th Cir. 2010). The newly
notarized copies of the previously submitted evidence were neither material nor
new. See 8 C.F.R. § 1003.2(c)(1).
page 5
DENIED.