PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3348
KUMAR BHARGAVA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
(Agency No. A95-592-373)
Immigration Judge: Charles M. Honeyman
Submitted Under Third Circuit LAR 34.1(a)
May 14, 2010
Before: BARRY, ROTH, Circuit Judges and DALZELL,*
District Judge
(Opinion Filed: July 1, 2010)
*
Honorable Stewart Dalzell, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
1
Michael S. Henry, Esq.
2336 South Broad Street
Philadelphia, PA 19145-0000
Counsel for Petitioner
Richard M. Evans, Esq.
Thomas W. Hussey, Esq.
Christina B. Parascandola, Esq.
Joan E. Smiley, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
BARRY, Circuit Judge
8 C.F.R. § 208.24(a)(1) provides that “an asylum officer
may terminate a grant of asylum made under the jurisdiction of an
asylum officer or a district director if following an interview, the
asylum officer determines that . . . [t]here is a showing of fraud in
the alien’s application such that [the alien] was not eligible for
asylum at the time it was granted.” That regulation, however, is
silent with respect to review by an immigration judge of an asylum
officer’s termination of asylum. Rather, in circumstances such as
those in this case, where the alien is not already in removal
proceedings, 8 C.F.R. § 208.24(e) instructs the Department of
Homeland Security (“DHS”) to “initiate removal proceedings, as
appropriate.”
The sole question before us is whether the Board of
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Immigration Appeals (“BIA”) erred in affirming the Immigration
Judge’s (“IJ”) decision that he lacked jurisdiction to review DHS’s
termination of petitioner’s asylum status. Because that conclusion
was not arbitrary or capricious nor plainly erroneous or inconsistent
with the regulation at issue, we will deny the petition for review.
I.
Ashok Kumar Bhargava is a native and citizen of India. He
was granted asylum by an asylum officer – not an immigration
judge – in September 2002.
In February 2004, Bhargava was served with Notice of
Intent to Terminate Asylum Status. That notice informed Bhargava
that DHS “obtained evidence that indicates fraud in your
application for asylum such that you were not eligible for asylum
at the time it was granted,” specifically that “[t]he preparers of your
application for asylum indicated as a part of a plea agreement that
the claims made in the asylum application you submitted were
fraudulent, and that the documents you submitted in support of
your testimony as having been tortured were counterfeit.” (A1.)
Following a termination interview, DHS, in February 2005,
notified Bhargava that his asylum status was terminated and served
him with a Notice to Appear, placing him in removal proceedings.
Bhargava moved before the IJ to terminate the removal
proceedings and to certify his case to the BIA. The IJ denied both
motions. In so doing, the IJ held “that [he] does not have
jurisdiction to review a termination of asylum status by the asylum
office.” (A23.) After noting 8 C.F.R. § 208.24’s silence on the
issue and distinguishing the cases cited by Bhargava, the IJ wrote
that he “cannot locate any authority in the Act or in the regulations
which gives [him] the authority to review de novo the legal
sufficiency of the termination of a grant of asylum and withholding
of removal in accordance with the procedures set forth in 8 C.F.R.
§ 208.24.” (A24.) The IJ continued: “It appears to the Court that
if Congress, in the Act, or the Attorney General, in the regulations,
intended for IJs to have review de novo over the termination of an
asylum grant, that language would be specifically included in the
Act or the regulations, as it is in other sections.” (Id.).
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A hearing was subsequently held on the merits of
Bhargava’s claims for asylum, withholding of removal, and relief
under the Convention Against Torture. The IJ made an adverse
credibility determination and held that Bhargava failed to meet his
burden of proof. The BIA adopted and affirmed the IJ’s decision,
including the IJ’s determination that he lacked jurisdiction to
review the DHS’s termination of Bhargava’s asylum status.1 It also
denied Bhargava’s motion to remand, and dismissed the appeal.
II.
Bhargava does not challenge the IJ’s and BIA’s denial of
relief on the merits. Rather, the sole question before us is whether
the BIA – and the IJ before it – erred in determining that the IJ
lacked jurisdiction to review DHS’s termination of petitioner’s
asylum status. We review this question of law de novo. Fadiga v.
Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007). Somewhat
surprisingly, there are no reported district court or court of appeals
decisions on point.
In conducting our review, we are mindful that “we owe
deference to the BIA’s conclusion as to the scope of its
jurisdiction” so long as the BIA’s interpretation of a statute or a
regulation is “not arbitrary or capricious, nor plainly erroneous or
inconsistent with the regulation.” Zegrean v. Att’y Gen., 602 F.3d
273, -- (3d Cir. 2010).
Pursuant to 8 C.F.R. § 208.24(a), “an asylum officer may
terminate a grant of asylum made under the jurisdiction of any
asylum officer or a district director if following an interview, the
asylum officer determines that” one of three conditions exist,
including, as here, “a showing of fraud in the alien’s application
such that [the alien] was not eligible for asylum at the time it was
granted.” Before an asylum officer may do so, however, the alien
“shall be given notice of intent to terminate, with the reasons
1
Where, as here, the BIA’s decision substantially relies on the IJ’s
decision, we consider both decisions. Kaita v. Att’y Gen., 522 F.3d
288, 295-96 (3d Cir. 2008).
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therefor, at least 30 days prior to” an interview, at which the alien
can present evidence demonstrating eligibility for asylum. 8 C.F.R.
§ 208.24(c). Should the asylum officer thereafter conclude “that
the alien is no longer eligible for asylum . . . the alien shall be
given written notice that asylum status . . . [is] terminated.” Id.
The regulation continues: “When an alien’s asylum status
. . . is terminated . . . the Service shall initiate removal proceedings,
as appropriate, if the alien is not already in . . . removal
proceedings.” 8 C.F.R. § 208.24(e). Section 208.24(f) provides
that an immigration judge “may terminate a grant of asylum . . .
made under the jurisdiction of the Service at any time after the
alien has been provided a notice of intent to terminate.” 8 C.F.R.
§ 208.24(f). Most important for our purposes, both 8 C.F.R. §
208.24 and 8 U.S.C. § 1158, the statute which governs asylum and
the termination thereof, are silent with respect to an immigration
judge’s jurisdiction to review a termination of asylum by DHS.
That silence must be juxtaposed against other statutes and
regulations that expressly confer jurisdiction on an immigration
judge following an asylum officer’s or director’s decision. One
example is the law governing joint petitions to remove the
conditional basis of lawful permanent resident status for alien
spouses. See 8 C.F.R. § 216.4. Under that regulation, if the
director finds that an alien and his or her spouse were not in a
qualifying marriage and denies the joint petition for lawful
permanent resident status, “[n]o appeal” lies, but “the alien may
seek review of the decision in removal proceedings.” 8 C.F.R. §
216.4(d)(2); accord 8 U.S.C. § 1186a(c)(3)(D) (“Any alien whose
permanent resident status is terminated . . . may request a review of
such determination in a proceeding to remove the alien.”) Another
example is the regulation governing temporary protected status.
See 8 C.F.R. § 1244.10. Under that regulation, should the director
deny temporary protected status and issue a notice to appear,
although not entitled to an appeal of the director’s decision, the
alien has a “right to a de novo determination of his or her eligibility
for Temporary Protected Status in . . . exclusion proceedings.” 8
C.F.R. § 1244.10(c)(2).
Those statutes and regulations demonstrate that Congress
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and the Attorney General are capable of expressly conferring
jurisdiction on an immigration judge to review an administrative
decision. The silence in 8 U.S.C. § 1158 and 8 C.F.R. § 208.24
speaks volumes. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432
(1987) (“Where Congress includes particular language in one
section of a statue but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (quotation and
editing marks omitted)).
III.
We cannot say that the IJ’s and BIA’s conclusion was
arbitrary or capricious, nor plainly erroneous or inconsistent with
the regulation. The petition for review will, therefore, be denied.
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