Ahir v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KALAVATIBEN AHIR, 
Petitioner, No. 04-73464
v.
 Agency No.
A70-623-855
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 4, 2008—Pasadena, California

Filed June 2, 2008

Before: J. Clifford Wallace, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Wallace

6415
 AHIR v. MUKASEY 6417

COUNSEL

Garish Sarin, Los Angeles, California, for the petitioner.

Peter Keisler, Assistant Attorney General, Norah Ascoli
Schwartz, Senior Litigation Counsel, John C. Cunningham,
6418 AHIR v. MUKASEY
Senior Litigation Counsel, Office of Immigration Litigation,
Washington, D.C., for the respondent.

OPINION

WALLACE, Circuit Judge:

Kalavatiben Ahir petitions for review of a decision of the
Board of Immigration Appeals (Board) affirming the Immi-
gration Judge’s (IJ) finding that her application for asylum
was frivolous. We have jurisdiction to review orders of
removal pursuant to 8 U.S.C. § 1252, and we deny the peti-
tion.

I.

Ahir, a native and citizen of India, entered the United States
through Miami, Florida in March 1992 as a non-immigrant
visitor. After overstaying her visa, Ahir filed an application
for asylum in May 1994. In her application, Ahir alleged that
in India she belonged to a “Hindu Sanatan group.” She
explained that the Sanatan group had been banned by the gov-
ernment, and that “we have been arrested several times for
protesting against those atrocities.” She also stated: “I have
been arrested for no reason many times because I don’t
believe in the policies of the government.” The application
form used by Ahir in 1994 did not contain any explicit warn-
ing of the consequences for filing a frivolous application.

In March 1999, the Immigration and Naturalization Service
(INS) terminated Ahir’s application for asylum after she
failed to appear at a scheduled hearing in Miami. The INS
then filed a Notice to Appear, charging her with removability
under section 237(a)(1)(B) of the Immigration and Nationality
Act (INA). When Ahir failed to appear, the IJ proceeded in
absentia and ordered her removed to India.
 AHIR v. MUKASEY 6419
In December 2000, Ahir filed an unopposed motion to
reopen her removal proceedings on the ground that she had
not received notice of the 1999 hearing. The IJ granted the
motion, as well as a subsequent motion for change of venue
to Los Angeles, California.

On May 24, 2001, Ahir appeared at a removal hearing
before an IJ in Los Angeles. At the hearing, her attorney con-
ceded that Ahir was subject to removal, but stated that she had
filed an application for asylum in 1994. He told the IJ that
Ahir wished to renew her claim for asylum and withholding.
He then submitted a new application, which he described as
“an amendment” to the 1994 application. In response, the IJ
warned Ahir’s attorney that the 1994 asylum application
could be used for impeachment purposes and that the attorney
“should not assume that the update material you give to me
is going to be without challenge by the Government.”

Ahir’s second asylum application contained additional
details about her alleged persecution in India. Ahir explained
that she had been a member of the “Samtha Group,” which
taught poor women “how to read and write and not to kill
their female children . . . .” She alleged that her involvement
with this group “brought the anger of men especially from the
Muslim community.” She also specified:

I was arrested three times, the first in December,
1979, then June, 1980, and then in July, 1982. At all
times, I was not presented in a court of law and told
to stop my activities. At times, I was slapped and my
hair was pulled by the police, as well, as hit by a
stick. All three arrests were for some time ranging
from 4 to 8 days.

Unlike her 1994 application, the application form submitted
by Ahir in 2001 contained an explicit warning of the conse-
quences for filing a frivolous application. Immediately above
6420 AHIR v. MUKASEY
Ahir’s signature was a conspicuous warning, in bold letters,
that:

Applicants determined to have knowingly made a
frivolous application for asylum will be perma-
nently ineligible for any benefits under the Immi-
gration and Nationality Act.

On the same page, Ahir’s attorney also signed a declaration
that “the completed application was read to the applicant in
his or her native language for verification before he or she
signed the application in my presence.”

After receiving Ahir’s second asylum application, the IJ
scheduled a hearing for February 13, 2003. One week before
the hearing, however, Ahir’s attorney requested a “continu-
ance of her asylum merits hearing” on the ground that she was
now eligible for adjustment based on an approved labor certi-
fication. The IJ granted a continuance, and her asylum hearing
was rescheduled for January 23, 2004.

When the date of Ahir’s asylum hearing arrived, her attor-
ney presented the IJ with an application for adjustment of sta-
tus, based on an approved labor certificate. At the start of the
hearing, the IJ took notice of Ahir’s adjustment application,
but stated that her “asylum and persecution claim . . . is the
ultimate claim the respondent is asserting . . . .” Ahir’s attor-
ney called only one witness, the owner of a jewelry store, who
indicated that he was willing to hire Ahir.

The government then called Ahir to testify. The IJ started
by reminding her that she remained under oath, and Ahir indi-
cated that she understood. During its questioning, the govern-
ment asked: “Have you ever been arrested or convicted of a
crime anywhere in the world?” When Ahir responded in the
negative, the government pointed out that her asylum applica-
tion indicated otherwise, and asked her if the information in
her application was false. She did not respond directly, but
 AHIR v. MUKASEY 6421
continued to insist that she had never been arrested. After sev-
eral attempts to re-frame the question, the following exchange
took place between the government and Ahir:

Q: Did you belong to any organizations in your
country?

A: It was with an Indian Swami, yes.

Q: Did you belong to the Samatha Group?

A: Yes, yes, the Samatha Group.

Q: Were you ever arrested for being a member of
the Samtha Group?

A: No, never.

At this point, Ahir’s attorney asked if he could go off the
record to speak with his client privately. The IJ refused, stat-
ing “I want a few more questions answered to me first.” The
IJ then asked Ahir whether she ever belonged to the “Hindi
Samaton Group.” She responded that she had. He then asked
her if she had “ever had problems because of that member-
ship,” to which she responded: “No, none.” Ahir’s attorney
then renewed his request to speak with his client privately off
the record. The IJ denied his request, but offered him an
opportunity to ask questions on redirect examination. In
response to questions by her attorney, Ahir asserted that she
filed an application for asylum because “the Muslims were
harassing me.” After repeated questioning by both the govern-
ment and her own attorney, however, Ahir continued to insist
that she had never been arrested anywhere in the world.

When the government and Ahir’s attorney were finished,
the IJ began his own questioning about Ahir’s asylum appli-
cations. The IJ first engaged in a lengthy description of the
precise discrepancies that concerned him. He read to Ahir
6422 AHIR v. MUKASEY
exactly what she wrote on her 1994 and 2001 applications,
and then asked her to explain why those applications did not
match her current testimony. Ahir was unable to explain, and
responded, “[a]t this moment, I’m not able to understand any-
thing.” The IJ then asked her directly: “Did you present to me
a false claim for asylum, a made-up claim? You’ve never
been persecuted or mistreated in India?” Ahir did not respond
directly, and continued to insist that she had never been
arrested.

At the conclusion of Ahir’s testimony, the IJ issued an oral
decision. He pointed out that when asked to explain the dis-
crepancies between her asylum applications and her testi-
mony, Ahir “either failed to explain . . . , failed to even
respond, or further contradicted her application.” He then con-
cluded that Ahir had filed a “fraudulent, frivolous claim for
asylum” and demonstrated a “total disregard for the Immigra-
tion laws of this country, and the generous nature of this
country and its people in regard to real individuals who seek
asylum and protection from harm.” By operation of INA
§ 208(d)(6), this finding of frivolousness required the IJ to
deny Ahir’s applications for adjustment of status and volun-
tary departure. In addition, he held that denial of those forms
of relief was warranted as a matter of discretion.

Ahir appealed the IJ’s decision to the Board. In her notice
of appeal, she alleged she had been “confused and disori-
ented” when the IJ questioned her about her asylum applica-
tions, because she was only prepared to go forward with an
adjustment application based on an approved labor certifica-
tion. She also alleged that the IJ’s finding of frivolousness
was based “on speculation and conjecture, without any evi-
dence . . . .” Nowhere in her notice of appeal or subsequent
appellate brief, however, did she allege any defect in the
notice she received of the consequences of filing a frivolous
asylum application.

The Board denied Ahir’s appeal in a one-paragraph deci-
sion. The Board agreed that Ahir had filed a frivolous applica-
 AHIR v. MUKASEY 6423
tion and was therefore ineligible for any benefits under the
INA.

II.

“We review the [Board’s] determination of purely legal
questions regarding the Immigration and Nationality Act de
novo.” Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.
2003). “To the extent the [Board] incorporates the IJ’s deci-
sion as its own, we review both the decisions of the [Board]
and IJ.” Plasencia-Ayala v. Mukasey, 516 F.3d 738, 743 (9th
Cir. 2008).

[1] Under INA section 208(d)(6), an alien found to have
“knowingly made a frivolous application for asylum” despite
receiving notice of the consequences, becomes “permanently
ineligible for any benefits” under the statute. 8 U.S.C.
§ 1158(d)(6). Given the severity of these consequences, the
implementing federal regulations provide that an applicant is
only subject to the penalties of INA section 208(d)(6) if cer-
tain procedural safeguards are met. See 8 C.F.R. § 208.20. In
particular, the Board or IJ must make a specific finding that
an alien deliberately fabricated a material element of the
application. The IJ or Board must also give the alien “suffi-
cient opportunity to account for any discrepancies or implau-
sible aspects of the claim.” Id.

[2] Subsequent to the Board decision in this case, the Board
published In re Y—L— to provide additional guidance as to
the “standards for deciding when an asylum application may
be found to be frivolous.” 24 I. & N. Dec. 151, 151-152 (BIA
2007). The Board outlined four procedural requirements nec-
essary for a finding of frivolousness. First, an asylum appli-
cant must have notice of the consequences of filing a
frivolous application. Id. at 155. Second, the IJ or Board must
make specific findings that the applicant knowingly filed a
frivolous application. Id. Third, those findings must be sup-
ported by a preponderance of the evidence. Id at 157. Finally,
6424 AHIR v. MUKASEY
the applicant must be given sufficient opportunity to account
for any discrepancies or implausibilities in his application. Id.
at 159-160.

We have not specifically addressed the procedural frame-
work outlined in In re Y—L—. Prior to In re Y—L—, we had
addressed the issue of frivolous asylum applications on only
one occasion. In Farah v. Ashcroft, we held that an alien must
be given “adequate opportunity” to address the discrepancies
in the record that form the basis of a frivolousness finding, but
we offered little additional guidance. 348 F.3d 1153, 1158
(9th Cir. 2003). Moreover, in the one published opinion to
address this issue after In re Y—L—, we did not apply the
Board’s reasoning directly, but instead remanded so that the
Board could “apply the standards set forth in In re Y—L— . . .
in the first instance.” Kalilu v. Mukasey, 516 F.3d 777, 779
(9th Cir. 2008) (footnote omitted).

[3] We adopt the analytical framework of In re Y—L— but
remand is not necessary here if the IJ and Board applied the
same test despite deciding this case prior to In re Y—L—. We
now address each of the four In re Y—L— requirements.

[4] The first requirement is that an applicant be given ade-
quate notice of the consequences of filing a frivolous applica-
tion. Ahir never raised this issue in her appeal to the Board.
She focused only on the perceived unfairness of the IJ’s ques-
tions, and the alleged lack of foundation for the IJ’s finding.
Because Ahir never argued to the Board that the notice she
received was in any way deficient, we lack jurisdiction to
consider the argument here. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004) (holding that 8 U.S.C. § 1252(d)(1)
“generally bars us, for lack of subject-matter jurisdiction,
from reaching the merits of a legal claim not presented in
administrative proceedings below”). Although Ahir now
frames her argument in terms of Constitutional due process,
the issue still falls outside our jurisdiction because any alleged
 AHIR v. MUKASEY 6425
defect in notice would have been “procedural in nature” and
could have been remedied by the Board. Id.

The government argues that Ahir did receive notice of the
consequences of filing a frivolous application. Immediately
above the signature line on the Form I-589 application she
filed in 2001 was a conspicuous warning, in bold text, that
“[a]pplicants determined to have knowingly made a frivolous
application for asylum will be permanently ineligible for any
benefits under the Immigration and Nationality Act.” Her
attorney also signed a declaration, on that same page, which
indicated that “the completed application was read to the
applicant in his or her native language for verification before
he or she signed . . . .” In In re Y—L—, the Board pointed to
the same Form I-589 warning language as evidence that an
applicant received notice. 24 I. & N. Dec. at 155. Neverthe-
less, because Ahir did not challenge the adequacy of her
notice before the Board, we do not decide whether this notice
was adequate.

[5] As for the second procedural requirement under In re Y
—L—, the IJ made explicit findings that Ahir knowingly filed
a frivolous application. In his oral decision, the IJ first listed
the inconsistencies between Ahir’s asylum applications and
her adjustment application. He then pointed out that when
asked to respond to the discrepancies, Ahir “either failed to
explain . . . , failed to even respond, or further contradicted
her application.” The IJ therefore found that Ahir’s claims of
persecution had been fabricated “whole cloth.” Finally, he
held, “[n]ot only did she begin with a fraudulent claim for
asylum, she renewed and updated in more detail, this fraudu-
lent claim, only showing her total disregard for the Immigra-
tion laws of this country . . . .”

We next turn to the third requirement from In re Y—L—:
the IJ’s findings must be supported by a preponderance of the
evidence. Prior to the Board’s publication of In re Y—L—, our
sister circuits generally required a finding of frivolousness to
6426 AHIR v. MUKASEY
be supported by something more than a mere adverse credibil-
ity finding. See, e.g., Scheerer v. U.S. Attorney Gen., 445 F.3d
1311, 1318 (11th Cir. 2006) (“an adverse credibility determi-
nation alone cannot support a finding of frivolousness”);
Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir. 2005)
(same); see also Mingkid v. U.S. Attorney Gen., 468 F.3d 763,
769-70 (11th Cir. 2006) (reversing when IJ found frivolous-
ness based only on minor inconsistencies). The courts gener-
ally only affirmed a finding of frivolousness if it was either
supported by some form of extrinsic evidence contradicting
the applicant’s claims, see, e.g., Ignatova v. Gonzales, 430
F.3d 1209, 1214 (8th Cir. 2005) (applicant shown to have
submitted fraudulent hospital records); Selami v. Gonzales,
423 F.3d 621, 624 (6th Cir. 2005) (applicant shown to have
fabricated a newspaper article), or if the applicant made an
explicit admission of untruthfulness, see Kifleyesus v. Gon-
zales, 462 F.3d 937, 945 (8th Cir. 2006) (applicant admitted
that asylum application was false); Barreto-Claro v. U.S.
Attorney Gen., 275 F.3d 1334, 1339 (11th Cir. 2001) (same).

Against this backdrop, the Board clarified in In re Y—L—
that the statute and regulations do not require any sort of
“concrete or conclusive” evidence to support a frivolousness
finding. 24 I. & N. Dec. at 158. Instead, the IJ is free to rely
on both direct and circumstantial evidence, so long as a pre-
ponderance of the evidence supports a finding of frivolous-
ness. Id.

[6] In the present case, there was no direct extrinsic evi-
dence that Ahir fabricated her asylum applications. Neverthe-
less, a preponderance of the evidence in the record supports
the IJ’s determination. In Ahir’s 2001 asylum application, she
stated she had been arrested on three specific dates as a result
of her membership in the Samtha Group. She embellished her
account of these arrests with the claim that she had been
slapped, hit by a stick, and had her hair pulled by the police,
and that she had been in custody for a number of days.
 AHIR v. MUKASEY 6427
[7] These claims are directly inconsistent with her subse-
quent assertion, in her application for adjustment, that she has
never been arrested “in or outside the U.S.” They are also
directly inconsistent with her repeated statements during the
hearing that she had never been arrested anywhere in the
world. Although Ahir did not admit that she lied in her asy-
lum applications, she made the functional equivalent of such
an admission when she repeatedly failed to account for the
discrepancies and continued to insist that she had never been
arrested. Therefore, we hold that the inconsistency between
her asylum applications, her written adjustment application,
and her hearing testimony, combined with her inability to
resolve these inconsistencies when requested to do so by the
IJ, provides a preponderance of evidence to support the IJ’s
determination of frivolousness.

[8] The IJ also satisfied the fourth In re Y—L— procedural
element, which requires each applicant to be given “ample
opportunity during his hearing to address and account for any
deliberate, material fabrications upon which the IJ may base
a finding of frivolousness.” Id. at 159 (internal quotation
marks and citation omitted). To that end, the Board indicated
that it would be “good practice for an Immigration Judge who
believes that an applicant may have submitted a frivolous asy-
lum application to bring this concern to the attention of the
applicant prior to the conclusion of proceedings.” Id. at 159-
60. The IJ in this case did just that. He first provided Ahir
with a lengthy and detailed explanation of the discrepancies
at issue and asked her to explain. When she proved unable to
do so, he asked her directly, “[d]id you present to me a false
claim for asylum, a made-up claim?” This was sufficient to
satisfy the fourth procedural element of In re Y—L—.

III.

We recognize that the consequences of a finding of frivo-
lousness under INA section 208(d)(6) are severe. However,
the decision to file a fraudulent application for asylum is not
6428 AHIR v. MUKASEY
one that should be taken lightly. When an applicant abuses the
asylum process, as Ahir has done here, we conclude that a
finding of frivolousness is appropriate. So long as the IJ and
Board have followed the procedural framework outlined in In
re Y—L—, an alien may properly be deemed “permanently
ineligible” for the benefits of this country’s immigration laws.

PETITION DENIED.