Balwinder Dhillon v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALWINDER KAUR DHILLON, No. 10-70247
Petitioner, Agency No. A079-268-243
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 5, 2014**
Portland, Oregon
Before: TROTT and W. FLETCHER, Circuit Judges, and BLOCK, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
Balwinder Kaur Dhillon petitions for review of a decision of the Board of
Immigration Appeals (“Board”) affirming and adopting in all respects an
Immigration Judge (“IJ”)’s decision denying Dhillon’s renewed applications for
asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”). The arguments raised in the petition are
without merit.
Dhillon’s first contention is that the IJ erred in finding that she knowingly
submitted a frivolous application for asylum. She argues that she is immune from
a finding of frivolousness because her discovery of the false information occurred
after the initial moment of filing. We decline to accept Dhillon’s argument. First,
there is no authority for her proposition. Dhillon’s reliance on Chen v. Mukasey,
527 F.3d 935 (9th Cir. 2008), is misplaced. There was no question in Chen that the
applicant knowingly submitted a false application; rather, the issue was whether
the applicant could avoid the consequences of filing a frivolous application by
withdrawing it before a final adjudication. Id. at 936. Furthermore, a finding of
frivolousness “shall only be made if the immigration judge or the Board is satisfied
that the applicant, during the course of the proceedings, has had sufficient
opportunity to account for any discrepancies or implausible aspects of the claim.”
8 C.F.R. § 1208.20 (emphasis added). The notion that the moment of filing is the
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sole consideration in a frivolousness analysis cannot be reconciled with regulations
that mandate procedural protections for the applicant “during the course of the
proceedings.” Id. Thus, because Dhillon does not contest that she understood the
consequences of filing a frivolous application, had ample opportunity to correct it,
and perpetuated the false information by obtaining affidavits to support it, the IJ
had substantial evidence to support the finding.
Dhillon’s second argument, that the IJ erred in making an adverse credibility
determination, lacks merit in light of her acknowledged false testimony and
submission of false affidavits.
Finally, the record does not contain sufficient evidence to compel the
conclusion that Dhillon has met her burden to show that she is entitled to
withholding of removal or protection under the CAT. See 8 C.F.R. §§ 208.16(b),
208.16(c)(2).
PETITION FOR REVIEW DENIED.
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