Fernandes v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JACINTO PASCOUL FERNANDES, 
Petitioner, No. 07-72415
v.
 Agency No.
A095-402-188
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
July 15, 2010—San Francisco, California

Filed August 20, 2010

Before: William A. Fletcher and Milan D. Smith, Jr.,
Circuit Judges, and James Dale Todd,
Senior District Judge.*

Opinion by Judge Milan D. Smith, Jr.

*The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.

12387
12390 FERNANDES v. HOLDER

COUNSEL

Daniela R. Razawi, Law Office of Daniela R. Razawi, Lin-
coln, California, for petitioner Jacinto Pascoul Fernandes.

Gregory G. Katsas, Acting Assistant Attorney General, Barry
J. Pettinato, Assistant Director, and Terri Leon-Benner, Trial
Attorney, Office of Immigration Litigation, United States Jus-
 FERNANDES v. HOLDER 12391
tice Department, Civil Division, for respondent Eric H.
Holder Jr., United States Attorney General.

OPINION

M. SMITH, Circuit Judge:

Jacinto Pascoul Fernandes, an Indian citizen, petitions for
review of the Board of Immigration Appeals’ (BIA’s or
Board’s) decision denying his application for asylum and
withholding of removal on the ground that he filed a fraudu-
lent asylum application and was not credible. We deny the
petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Fernandes seeks asylum and withholding of removal based
on alleged persecution for his Christian beliefs and for
imputed political opinion.1 Although Fernandes’s story varied
throughout the immigration proceedings, he generally alleges
that his persecution arose out of an arrest at a Sikh rally which
he attended as a sympathizer to the plight of non-Muslim reli-
gions in India.

I. Asylum Application and Hearing

In his asylum application, Fernandes claimed that he was
beaten by police after his arrest at the Sikh rally, and that a
year later the police came to his home looking for him.
Unable to find Fernandes, they arrested his wife and infant
child instead. Fernandes claimed that his wife was raped
while in custody.
1
Fernandes did not challenge the IJ’s determination that he was not enti-
tled to relief under the Convention Against Torture (CAT) in either his
appeal to the BIA, or on appeal to this court. Any challenge to the IJ’s
CAT determination is therefore waived. See 8 U.S.C. § 1252(d)(1); Arpin
v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).
12392 FERNANDES v. HOLDER
During his first asylum hearing, Fernandes testified about
his alleged arrest at the Sikh demonstration and the subse-
quent arrest of his family. He also said that the police returned
to his home a second time and that drunk officers tied him to
a chair, beat him, and threatened that he would be killed
unless he fled the country. On cross-examination, Fernandes
admitted that he had joined the Sikh demonstration in 2000
because he sympathized with their causes but that he did not
know much about the Sikh religion. He acknowledged that
hundreds of participants, including other Christians, took part
in the demonstration. He said that his neighbors, who were
Hindus, told the police that he would be attending the demon-
stration but could not explain why he was targeted.

Fernandes also testified about a number of facts that he
later admitted were false. He claimed that he lived with a
friend in Elk Grove, California; that he had been employed as
a hotel musician in India; and that he had last spoken to his
wife the day before the initial hearing before the IJ. He also
stated that he attended a Catholic church in Elk Grove and
that he rode his bicycle to church. During the hearing, Fer-
nandes declined the opportunity to make changes to his decla-
ration or application.

Fernandes also admitted that he was fluent in English, even
though he had previously claimed that he did not speak
English when requesting a translator.2 He explained this dis-
crepancy by saying he was afraid to admit that he spoke
English because he thought he would be in trouble for
requesting a translator. He did not explain why he requested
a translator in the first place.

Finally, when asked about a conflict between his applica-
tion, which indicated that he had been unemployed since
2
The translator Fernandes obtained was Kashmir Singh Malhi, the busi-
ness partner of Boota Singh Basi. We describe below Basi and Malhi’s
fraudulent asylum application scheme.
 FERNANDES v. HOLDER 12393
October 1996, and his testimony, in which he claimed to have
worked as a professional musician until 2001, Fernandes
claimed that Boota Singh Basi (Basi), his application pre-
parer, had made an error. When asked to explain this inconsis-
tency further, Fernandes said: “I have no answer for that.”

II. First IJ Decision

The IJ issued a lengthy opinion denying Fernandes’s appli-
cation. The IJ did not make an adverse credibility finding, but
she repeatedly expressed doubt about his credibility and stated
that she could not “give his testimony full weight as evi-
dence.” The IJ noted ambiguities and inconsistencies in the
record, including the fact that Fernandes had an opportunity
to correct his lie about speaking English, but chose not to do
so. The IJ also found that Fernandes failed to demonstrate a
“nexus” between the alleged harm and a protected ground,
thus concluding that he was not entitled to asylum or with-
holding of removal.

III. First BIA Decision

On appeal, the BIA held that it would assume that Fer-
nandes was credible because the IJ had not made an explicit
adverse credibility finding and had not identified any bases
sufficient to support such a finding. Based on that assumption,
the BIA found that Fernandes had satisfied his burden of
proving past persecution, which gave rise to a rebuttable pre-
sumption that Fernandes would face future persecution.
Accordingly, the BIA remanded the case to the IJ to provide
the Department of Homeland Security (DHS) an opportunity
to provide additional evidence to rebut the presumption that
Fernandes has a well-founded fear of future persecution. The
remand order stated:

[T]he record will be remanded to allow the DHS an
opportunity to establish that since the time the perse-
cution occurred conditions in the respondent’s coun-
12394 FERNANDES v. HOLDER
try have changed to such an extent that the
respondent no longer has a well-founded fear of
being persecuted if he were to return to his country.
Accordingly, the following order is entered.

ORDER: The appeal is sustained and the record is
remanded for further proceedings consistent with the
foregoing opinion.

IV. Second Asylum Hearing

On remand, the government filed a motion with the IJ to
reopen under 8 C.F.R. § 1003.23, seeking to introduce new
evidence that Fernandes had knowingly filed a fraudulent asy-
lum application. In its motion, the government proffered the
testimony of Basi, who had prepared Fernandes’s application.
Basi and his partner Kashmir Singh Malhi (Malhi) ran a busi-
ness preparing fraudulent asylum applications, and Basi pled
guilty to conspiracy to make false statements under oath with
respect to asylum applications.3 The IJ granted the govern-
ment’s motion to reopen, over Fernandes’s objection.

At the second asylum hearing, Basi testified that he and
Mahli had operated a business creating and filing false asylum
applications for Indian aliens. Basi pled guilty to charges
stemming from this conduct. Although testifying against his
former clients was not a formal condition of Basi’s plea
agreement, Basi agreed to cooperate with the government by
testifying against former clients and, in exchange, received a
reduced sentence of eleven months (time served). To orches-
trate their fraudulent scheme, Basi and Malhi had their clients
sign blank asylum applications. Basi and Malhi then com-
pleted the applications by inserting entirely fabricated stories
of persecution, except for some accurate basic information.4
3
Basi testified that the government had removed Mahli to India as a
result of Mahli’s involvement in the fraudulent scheme.
4
Name, date and place of birth, and similar information about family
members.
 FERNANDES v. HOLDER 12395
Basi testified that none of his clients had ever presented him
with a genuine claim and that every application he had ever
filed was false.

Basi also testified that he recognized Fernandes as a former
client for whom he had filed a fraudulent asylum application.
He stated that Fernandes had responded to one of Basi’s
advertisements and that they had met in New York to discuss
the application. Because Fernandes lived in New Jersey, Basi
used his friend’s California address on Fernandes’s applica-
tion. As was his practice, Basi gave Fernandes a blank asylum
form and asked him to sign it and provide the basic biographi-
cal information. Basi then returned to California and created
a fictional story about Fernandes’s arrest at a Sikh rally. As
the hearing date neared, Fernandes flew to California, where
Basi coached him for two to three days to help him learn the
false narrative and prepared him to testify concerning it.

During the hearing, Basi was presented with a folder that
the INS had confiscated from his office. He identified it as his
work folder for Fernandes’s application. Basi testified that his
recollection of Fernandes’s case was particularly good
because Fernandes was one of his few Christian clients—the
majority of his clients being Sikh.

Next, Fernandes took the stand and admitted that he had
given a false California address and that Basi had prepared his
asylum application. He admitted that he had contacted Basi
for help with his asylum application and that the pair had met
in New York. He said that he told Basi about his persecution
in India and that Basi took notes on the story. Fernandes said
that he signed a blank asylum application with the under-
standing that Basi would complete the application for him.

In addition to acknowledging the false address, Fernandes
admitted in direct testimony that a statement in the application
about Christians being burned alive in India was a lie added
by Basi. On cross-examination, Fernandes also admitted that
12396 FERNANDES v. HOLDER
he had lied under oath about the following facts: (1) that a
minivan dropped him off in Elk Grove, California; (2) that he
lived in Elk Grove; (3) that he rode a bicycle to church in Elk
Grove; (4) that he worked at a Mobil station in New Jersey;
and (5) when he had last contacted his wife. He also admitted
that he never provided a written personal statement to Basi,
as he had earlier claimed.

V. Second IJ Decision

In her second decision, the IJ found Fernandes not credible
and denied his application for asylum, withholding of
removal, and CAT relief. First, the IJ held that she had juris-
diction to consider the government’s motion to reopen
because the BIA’s remand order was not limited. The IJ found
that granting the motion to reopen was warranted because the
new evidence was relevant to the case. She also held that Fer-
nandes had knowingly filed a frivolous asylum application in
violation of 8 U.S.C. § 1158(d)(6).

VI. Second BIA Decision

The BIA affirmed the IJ’s second decision and dismissed
Fernandes’s appeal. It found that the IJ had properly consid-
ered the government’s motion to reopen because the remand
was not limited in scope and that the IJ had correctly deter-
mined that Fernandes was not credible and that he had filed
a frivolous application. Fernandes filed a timely petition for
review.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252 to review final
removal orders issued by the BIA. We must uphold the BIA’s
factual determinations if they are “supported by reasonable,
substantial, and probative evidence on the record considered
as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)
(quoting 8 U.S.C. § 1105a(a)(4) (repealed 1996)). To reverse
 FERNANDES v. HOLDER 12397
a factual determination, we must find that the evidence com-
pels a contrary conclusion. Molina-Estrada v. INS, 293 F.3d
1089, 1093 (9th Cir. 2002). Legal conclusions are reviewed
de novo. Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir.
2004).

DISCUSSION

Fernandes argues that the IJ’s consideration of the motion
to reopen violated the BIA’s remand order. He also asserts
that the BIA’s adverse credibility determination was not sup-
ported by substantial evidence and that the BIA erred in find-
ing that Fernandes filed a frivolous application. We affirm the
BIA on all counts.

A. Scope of the Remand Order

After determining that Fernandes had established past per-
secution, the BIA remanded the record to the IJ “to allow the
DHS an opportunity to establish that since the time the perse-
cution occurred conditions in the respondent’s country have
changed[.]” The order instructed that the record be “remanded
for further proceedings consistent with the foregoing opin-
ion.” Fernandes claims that the IJ’s consideration of the
motion to reopen on remand was improper because the
remand order “clearly and expressly required that the pro-
ceedings resulting from the order should be consistent with
the BIA’ [sic] opinion” and that “[r]e-assessing once again
[Fernandes’s] credibility was not consistent with the BIA’s
order to allow DHS to rebut the presumption of future harm.”
We disagree.

[1] In Matter of Patel, the BIA established the standard for
the scope of remand orders, holding that:

unless the Board qualifies or limits the remand for a
specific purpose, the remand is effective for the
stated purpose and for consideration of any and all
12398 FERNANDES v. HOLDER
matters which the Service officer deems appropriate
in the exercise of his administrative discretion or
which are brought to his attention in compliance
with the appropriate regulations.

16 I. & N. Dec. 600, 601 (BIA 1978); see also Matter of M—
D—, 24 I. & N. Dec. 138, 141 (2007) (“[W]e have historically
treated a remand as effective for consideration of all matters
unless it is specifically limited to a stated purpose.”); see also
id. at 142 (“In other words, the [IJ] has authority to consider
new evidence [on remand] if it would support a motion to
reopen the proceedings.”).

[2] Here, the BIA remanded to allow the government to
rebut the presumption of a well-founded fear of future perse-
cution. However, as the Board noted in its subsequent deci-
sion, the remand order did not limit or qualify the IJ’s ability
to consider new evidence or motions. It simply directed the IJ
to conduct further proceedings “consistent with” the Board’s
opinion. In Matter of M—D—, the Board remanded with
directions for the IJ to conduct background checks. Although
the purpose of the remand was to determine whether the req-
uisite background checks had been completed, the scope of
the remand was not restricted and did not prohibit the IJ from
considering new evidence. 24 I. & N. Dec. at 141. In fact, in
Matter of M—D—, the BIA held that the IJ erred in declining
to consider the new evidence. Id. at 141-42. The Third Circuit
has articulated a similar rule, holding that an IJ’s jurisdiction
is only narrowed when the Board expressly retains jurisdic-
tion and qualifies or limits the remand to a specific purpose.
See Johnson v. Ashcroft, 286 F.3d 696, 701-03 (3d Cir. 2002)
(remand for consideration of a CAT claim did not limit the
IJ’s jurisdiction to consider other forms of relief).

[3] As a matter of first impression in our circuit we agree
with the reasoning of the Third Circuit, and hold that the IJ’s
jurisdiction on remand from the BIA is limited only when the
BIA expressly retains jurisdiction and qualifies or limits the
 FERNANDES v. HOLDER 12399
scope of the remand to a specific purpose. An articulated pur-
pose for the remand, without any express limit on scope, is
not sufficient to limit the remand such that it forecloses con-
sideration of other new claims or motions that the IJ deems
appropriate or that are presented in accordance with relevant
regulations. The BIA is free to impose a different rule, but in
the absence of such a rule we will construe a BIA remand to
an IJ in the manner just described. In this case, the BIA did
not retain jurisdiction and did not expressly limit the scope of
the remand. Accordingly, we affirm the BIA’s holding that
the IJ properly considered the motion to reopen on remand.

B. Adverse Credibility

Fernandes next argues that the IJ’s adverse credibility
determination is not supported by substantial evidence. See
Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002).5 Specifi-
cally, he contends that Basi was not a credible witness and
that Fernandes did not misrepresent facts about himself.

[4] Fernandes concedes that Basi’s testimony was consis-
tent with his plea agreement and judgment. He suggests, how-
ever, that Basi was biased because he had an incentive to
cooperate with the government in order to receive a light sen-
tence. But, as the IJ reasoned, the fact that Basi initially had
an incentive to cooperate with the government does not mean
that he was biased against Fernandes specifically or that he
had any ongoing incentive to testify against Fernandes after
Basi’s sentence had already been finalized. Basi’s story was
consistent and supported by the evidence. Moreover, Basi’s
testimony was largely consistent with Fernandes’s story con-
cerning their meeting and the process by which Basi prepared
Fernandes’s application. The only difference—albeit a crucial
one—is that Basi claimed to have fabricated Fernandes’s per-
5
This case is not governed by the REAL ID Act of 2005, Pub. L. No.
109-13 (2005), because Fernandes filed his application before May 11,
2005.
12400 FERNANDES v. HOLDER
secution story, as he did for all of his clients, while Fernandes
maintains that the story was true. Fernandes provided no evi-
dence other than his testimony that his account was true.

[5] Fernandes also suggests that Basi’s story was not as
“straightforward” as the IJ made it out to be. However, he
points only to minor details of their interactions that Basi
could not remember, for example, when they first met and
whether the application had been faxed, mailed, or handed to
Fernandes. These minor lapses in memory are consistent with
Basi’s testimony that he had trouble remembering the details
of each individual application because he had prepared over
one hundred of them. Significantly, Basi remembered more
about Fernandes’s case than about his other clients’ cases
because they spent a lot of time prepping and because Fer-
nandes was one of his few Christian clients.

[6] Finally, Fernandes attempts to explain his misrepresen-
tations about his address and his family’s whereabouts. He
says he gave a false address because Basi told him he needed
a California address to file the asylum application in San
Francisco. Although we distinguish between “false statements
made to establish the critical elements of the asylum claim
from false statements made to evade INS officials,” Akinmade
v. INS, 196 F.3d 951, 956 (9th Cir. 1999), the IJ only relied
on these misrepresentations as further evidence of Fer-
nandes’s lack of credibility. Ultimately, the IJ’s determination
was based on the evidence that Fernandes’s claim of persecu-
tion was entirely fabricated, a fact that clearly goes to the
“heart of the asylum claim.” Ceballos-Castillo v. INS, 904
F.2d 519, 520 (9th Cir. 1990).

[7] We hold that the IJ’s adverse credibility determination
was supported by substantial evidence. Basi testified credibly
and consistently that he had prepared and falsified Fer-
nandes’s asylum application, as he had done for at least a hun-
dred other clients. To rebut this evidence, Fernandes relied
only on his own testimony, which he eventually admitted was
 FERNANDES v. HOLDER 12401
riddled with misrepresentations. The IJ did not err in believ-
ing Basi over Fernandes. Thus, we affirm the finding that Fer-
nandes was not credible, that his application was fraudulent,
and that he was not entitled to asylum or withholding of
removal.6

C. Frivolousness

[8] “An asylum application is frivolous if any of its mate-
rial elements is deliberately fabricated.” 8 C.F.R. § 1208.20.
When an alien knowingly files a frivolous application after
being informed of the consequences of doing so, “the alien
shall be permanently ineligible for any benefits under [the
Immigration and Nationality Act].” 8 U.S.C. § 1158(d)(6). In
order to sustain a finding of frivolousness, (1) “an asylum
applicant must have notice of the consequences of filing a
frivolous application;” (2) “the IJ or Board must make spe-
cific findings that the applicant knowingly filed a frivolous
application;” (3) “those findings must be supported by a pre-
ponderance of the evidence;” and (4) “the applicant must be
given sufficient opportunity to account for any discrepancies
or implausibilities in his application.” Ahir v. Mukasey, 527
F.3d 912, 917 (9th Cir. 2008) (citing In re Y—L—, 24 I. & N.
Dec. 151, 155, 157, 159-60 (2007)).

[9] Fernandes concedes that he received notice of the con-
sequences of filing a frivolous asylum application, and that he
was given an opportunity to account for discrepancies in his
claim. Also, the IJ addressed the frivolousness finding sepa-
rately and made specific findings about the fabrication, stat-
ing:
6
Fernandes argues that he is entitled to withholding of removal “even
if his application would be found to be frivolous.” He is mistaken. Fer-
nandes has not shown a well-founded fear of future persecution, and there-
fore cannot meet the stricter standard of proof for withholding of removal.
See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000) (noting that
a failure to satisfy the lesser standard for a grant of asylum necessarily
results in a failure to demonstrate eligibility for withholding of removal).
12402 FERNANDES v. HOLDER
At this point, because the Court has concluded that
the respondent lacks credibility and has concluded
that he did contract with Mr. Basi to prepare an
application for which there is absolutely no evidence
that the respondent provided substantive informa-
tion, . . . [a]nd as the respondent has everything to
lose by admitting that and Mr. Basi has little, if any-
thing, to lose from his testimony and has been a
much more straightforward witness, whereas the
respondent has not, the Court concludes that the
respondent has knowingly filed a frivolous applica-
tion, it contains fabrications and was given [sic] the
advisals and therefore, would be forever barred from
any relief under the immigration laws of this coun-
try. The Court does not make this finding lightly.

[10] Fernandes argues that, although the IJ complied with
all the procedural requirements of a frivolousness finding, she
erroneously credited Basi’s testimony over his own. This is a
reiteration of his arguments regarding the adverse credibility
determination, and we reject it for the same reasons previ-
ously discussed. See Part B supra. Our sister circuits have
observed that “an adverse credibility determination alone can-
not support a finding of frivolousness.” Ahir, 527 F.3d at 918
(citing cases). In this case, however, the IJ gave cogent and
convincing reasons for her specific finding that Fernandes’s
application was fraudulent. This finding was supported by a
preponderance of the evidence. Therefore, we affirm the
BIA’s finding that Fernandes filed a frivolous application
under 8 U.S.C. § 1158(d)(6).

CONCLUSION

For the foregoing reasons, we AFFIRM the BIA’s decision
and DENY Fernandes’s petition for review.

PETITION FOR REVIEW DENIED.