17-294
Pipul v. Sessions
BIA
Vomacka, IJ
A079 258 939
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 26th day of June, two thousand eighteen.
PRESENT:
JON O. NEWMAN,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
MOHAMMED UZZAL PIPUL, AKA
MOHAMMED MAHIDUR RAHMAN,
Petitioner,
v. 17-294
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell,
New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Emily Anne
Radford, Assistant Director; David
J. Schor, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner, Mohammed Mahidur Rahman, a native and citizen
of Bangladesh, using the name Mohammed Uzzal Pipul, seeks
review of a January 11, 2017, decision of the BIA affirming
an April 19, 2016, decision of an Immigration Judge (“IJ”)
ordering removal and concluding that he was ineligible to
adjust status based on his marriage to a United States citizen
because he had previously filed a frivolous asylum
application. In re Mohammed Uzzal Pipul, a.k.a. Mohammed
Mahidur Rahman, No. A 079 258 939 (B.I.A. Jan. 11, 2017),
aff’g No. A079 258 939 (Immig. Ct. N.Y. City Apr. 19, 2016).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case, which are included only
as necessary to explain our decision to deny the petition for
review.
2
Because the petitioner’s true name is Mohammed Mahidur
Rahman, we refer to him as Rahman. In 1998, Rahman applied
for asylum under his true identity.1 The application was
denied, and in 1999, he was ordered removed from the United
States. In 2001, Rahman filed a second asylum application
using a false name (Pipul) and a false birth date. The 2001
application reflected that he had not previously filed for
asylum. This application was granted, and Rahman became a
lawful permanent resident under the name Pipul. He was
placed in removal proceedings when the agency discovered his
misrepresentation. The agency concluded that Rahman’s second
application was frivolous, and thus bars him from adjusting
to lawful permanent resident status based on his marriage.
Under the circumstances of this case, we have reviewed
the IJ’s decision as supplemented by the BIA. Niang v.
Holder, 762 F.3d 251, 253 (2d Cir. 2014). We review the
agency’s factual findings for substantial evidence and its
1 Rahman listed his name as Mohammed Mahidur Rahman on his Form I-
495, Application to Register Permanent Residence or Adjust Status, CAR
210, 215, and his former attorney, Zlata Berman, informed the IJ that
his “true and correct name is Mohammed Mahedor [sic] Rahman” and that
Pipul is a nickname, CAR 73. It is not clear why his current attorney
calls him “Mr. Pipul.” Br. for Petitioner 2.
3
legal conclusions de novo. Id.
“A person who makes an application for asylum determined
to be ‘frivolous,’ or deliberately and materially false, is
subject to a grave penalty: permanent ineligibility for most
forms of relief under the immigration laws.” Mei Juan Zheng
v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see also
8 U.S.C. § 1158(d)(6). Before being subject to this
permanent bar, Rahman was entitled to procedural safeguards:
“(1) notice . . . of the consequences of filing a frivolous
application; (2) a specific finding . . . that [he] knowingly
filed a frivolous application; (3) sufficient evidence in the
record to support the finding that a material element of the
asylum application was deliberately fabricated; and (4) . .
. sufficient opportunity to account for any discrepancies or
implausible aspects of the claim.” In re Y-L-, 24 I. & N.
Dec. 151, 155 (B.I.A. 2007). The IJ’s frivolousness finding
must be supported by a preponderance of the evidence and must
take into account any “plausible explanations” that are
offered for the discrepancies or fabrications. Id. at 157.
As discussed below, all four the requirements were met.
4
The first requirement was met because the 2001
application form that Rahman signed contained a written
warning of the consequences of filing a frivolous
application. That written warning is sufficient. Niang,
762 F.3d at 254-55.
The IJ and BIA met the second requirement by explicitly
finding that Rahman deliberately filed a frivolous asylum
application. Rahman argues that the use of a false name or
other false identity information is not always material, and
that the agency did not prove that his fabrication was knowing
and deliberate. These arguments are defeated by Rahman’s
concession that he used the false information to conceal his
prior asylum application and removal order. Had Rahman used
his real identity, he would have been required to file a
motion to reopen and would have been eligible for asylum only
if he could establish a material change in conditions in
Bangladesh. See 8 U.S.C. §§ 1158(a)(2)(C),
1229a(c)(7)(C)(ii); Yuen Jin v. Mukasey, 538 F.3d 143, 156
(2d Cir. 2008).
The third requirement is met because the record contains
adequate evidence of Rahman’s fabrications. Although the
5
written statement accompanying his 2001 application is not in
the record, the fabrications regarding his name, birth date,
and prior application are on the form itself. Moreover, to
the extent that the IJ and BIA relied on the dates of the
alleged persecution as reflected in the asylum officer’s
written summary of Rahman’s 2001 claim—which were
contradicted by Rahman’s earlier entry into the United
States—Rahman does not challenge the reliability of the
summary.
Last, Rahman had sufficient opportunity to explain his
use of the false information, but he never filed an affidavit
with the IJ or asked to testify. Even now, Rahman’s brief
offers no alternative explanation for his use of false
identity information. Rahman’s due process argument fails
for this reason: because he offers no explanation, he cannot
show that any lack of opportunity to explain caused prejudice.
See Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.
2008) (“Parties claiming denial of due process in immigration
cases must, in order to prevail, allege some cognizable
prejudice fairly attributable to the challenged process.”
(internal quotation marks omitted)).
6
In sum, the agency’s frivolousness finding is supported
by a preponderance of the evidence and the agency complied
with the required procedural protections.
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
7