Rafael Barreto-Claro v. The U.S. Attorney General

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ DECEMBER 19, 2001
THOMAS K. KAHN
No. 00-10154 CLERK
________________________

INS No. A76-957-148

RAFAEL BARRETO-CLARA,
Petitioner,

versus

THE U.S. ATTORNEY GENERAL,
IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

________________________

Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(December 19, 2001)
Before BARKETT, HILL and KRAVITCH, Circuit Judges.

HILL, Circuit Judge:

Petitioner Rafael Barreto-Claro (Barreto), a native and citizen of Cuba, seeks

our review of a final order of removal issued by the Board of Immigration Appeals

(Board). His case represents an issue of first impression in this circuit and

apparently all others concerning the filing of frivolous asylum applications under 8

U.S.C. § 1158 (d)(6), as rewritten by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208.

Upon our review of the administrative record, we conclude that Barreto

knowingly filed a frivolous asylum application as defined under Section

1158(d)(6) and its corresponding regulation, 8 C.F.R. § 208.18. We also find the

evidence Barreto presented insufficient to prove the merits of his claim for asylum

in order to withhold deportation. Based upon the following, the Board’s final order

of removal, dismissing Barreto’s appeal, is affirmed.

I.

The facts are simple. Until he was accused of improper conduct as an

American sympathizer and expelled, Barreto was an active member of the Cuban

Communist Party from 1982 until 1985. More recently, for four consecutive years,

Barreto applied to the American Interests Section of the United States government

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in Havana for a tourist visa to enter the United States legally. Each time he was

denied on the basis that he was “a possible immigrant.”1

Barreto then decided he must travel to the United States in an illegal, more

circuitous, way. In February 1998, by fraudulently claiming he had immediate

family in Costa Rica, and, by paying a $4,000 bribe to a corrupt Cuban official at

the Havana airport, Barreto obtained a visa from the local Costa Rican Consulate.2

Using this visa, he received a Cuban passport and left the country in February

1998. Six months passed and Barreto was still living in Costa Rica when he

became concerned to learn that the Costa Rican government planned to verify all

visas issued to Cubans from November 1997 to March 1998, and that his visa was

“under supervision.”3

Fearing discovery and deportation by the Costa Rican immigration officials,

Barreto arranged, for $5,000 paid to professional smugglers, to fly to Atlanta. The

smugglers told him to lie about the origin of his Costa Rican flight. Fearing

1
Many members of Barreto’s family were already in the United States, legally or
illegally.
2
This visa is described as an A-9 visa given for refugee and humanitarian status in Costa
Rica, generally based upon the existence of a relative living in that country. Barreto allegedly
lied about a brother living in Costa Rica.
3
From the record it appears that Barreto took preliminary steps while in Costa Rica to
convert his temporary status under the A-9 visa to permanent resident status. However, he did
not pursue this process, after he failed to appear at a scheduled interview, as he apparently was
afraid of being returned to Cuba once his fraud was uncovered by Costa Rican officials.

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retribution if he betrayed the smugglers, and thousands of dollars in fines for the

airline, Barreto agreed.

Upon Barreto’s arrival at Hartsfield Airport in August 1998, he applied to

the Immigration and Naturalization Service (INS) for admission to the United

States. He possessed no valid unexpired immigrant visa, unexpired passport or any

other suitable travel document or identity and nationality document. Barreto was

detained and charged with being removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I)

for lack of proper documentation. In a sworn statement executed before an airport

immigration officer, Barreto concealed the fact that he had lived in Costa Rica for

six months, instead claiming that he had flown directly from Cuba to the United

States, with a brief stopover in some unknown Latin American country.

II.

The INS began formal removal proceedings against Barreto. In September

1998, Barreto submitted his first asylum application, signed by his attorney. Part

A, no. 22 of the application inquires “Have you ever applied to the United States

Government or to any other Government(s) for refugee status, asylum, withholding

of deportation, or withholding of removal?” Barreto marked the box “NO.” At

Part C, no. 7 of the application, Barreto was asked to detail his trip to the United

States. He made the following false statement:

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 I left Cuba on a Cuba national airline flight. I was taken to another
country, but I don’t know which one. At the airport in that Country I
was taken to an airplane bound for the United States. I was not told
the names of anyone who helped me leave Cuba or the names or
locations of my transit point. I had never flown in an airplane and was
very nervous, so I did not hear our destination or see exactly where it
was.

Five months later, in February 1999, Barreto filed a second revised

application, also signed by his attorney. This time, in reference to Part A, number

22, Barreto marked the box “Yes,” and indicated that he had been granted some

form of refugee status in Costa Rica, but that it had been based upon incorrect

information. This time, in reference to Part C, number 7, Barreto told the truth

about his circuitous journey from Cuba to the United States.

At a merit hearing held before an immigration judge (IJ), Barreto testified

about the history of his family life in Cuba, his three-year association with the

Communist Party, his persecution upon his expulsion from the party,4 his fears of

future persecution, arrest and torture should he be forced to return to Cuba, and the

4
Barreto claims he was expelled from the Cuban Communist party for associating with
his sister-in-law, a Cuban-American. As a result, he claims that he became a common citizen
and was isolated. After his expulsion, Barreto lost his job as a taxi driver and was forced to rent
his house out to foreign tourists while he lived in a shack next to the house, his telephone calls
were monitored, he was subjected to searches for prohibited foods, and he rejected the only job
offer he had, that of gravedigger.

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fact that his family was in the United States with no close relatives left in Cuba.5

He also testified that he lied on his initial asylum application out of fear for the

smugglers.6 Barreto’s testimony was consistent with the statements made on his

second amended asylum application.7

III.

In his opinion, while sympathetic, the IJ found Barreto to have filed a

frivolous asylum application and be removable as charged. He determined that

Barreto was not a sincere asylum applicant but merely using the issue of asylum as

a ruse in an attempt to reunite with family members already present in the United

States. In addition, based upon multiple frauds committed, the IJ found Barreto to

be incredible. On the merits, the IJ found that Barreto had not established either

past persecution in Cuba or the requisite well-founded fear of future persecution.

5
The administrative record contains, and counsel for Barreto affirms, that Barreto
received two notices warning him that the filing of a frivolous asylum claim would cause him to
be permanently barred from any relief under the Immigration and Nationality Act (INA). The
notices define a frivolous application as “one which contains statements or responses to
questions that are deliberately fabricated.” At the preliminary and merits hearings, the record is
clear that the IJ also gave Barreto one, perhaps, two oral warnings of the consequences of filing a
frivolous application.
6
At Barreto’s merit hearing, an associate professor at the University of Louisville, with a
doctoral dissertation on Cuba, testified on his behalf as an expert witness as to the risk of
persecution should Barreto be returned to Cuba.
7
At the merit hearing, a Costa Rican government official was consulted by telephone.
The question of whether Barreto might have achieved permanent residence in Costa Rica,
despite this fraud in obtaining the A-9 application, was not resolved.

6
 The Board upheld the finding by the IJ that Barreto had knowingly filed a

frivolous asylum application based upon responses to numbers A.22 and C.7 that

were false, knowingly and deliberately made, and material. See 8 U.S.C. § 1158

(d)(6).8 It examined the facts surrounding Barreto’s travel to the United States

after a six-month stopover in Costa Rica. It noted that, while in Costa Rica,

Barreto had taken preliminary steps to convert his temporary status to permanent

status, but abandoned the idea out of fear for the fraud he had committed. The

Board also noted that the IJ could not resolve the question of whether Barreto

might have been granted permanent residence in Costa Rica, despite his fraud. In

affirming the decision of the IJ, the Board found that, as the fabrications on

Barreto’s asylum application related to the issue of firm resettlement in Costa Rica,

he had made a frivolous application under the terms of the statute. Id.

The Board also upheld the IJ’s finding that Barreto had not met his burden

of proof to establish asylum, as he had proved neither past persecution or a well-

founded fear of future prosecution if returned to Cuba and dismissed his appeal.

See INS v. Elias-Zacarias, 112 S.Ct. 812 (1992). Shortly thereafter, Barreto filed a

petition for review with this court.

8
Based upon the regulation promulgated to implement Section 1158 (d)(6), the Board
confirmed that Barreto had received proper notice warnings and that these material fabrications,
made after notice was received, could not be corrected through recantation. See 8 C.F.R. §
208.18.

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 IV.

We review de novo the statutory interpretation finding by the Board that

Barreto filed a frivolous asylum application under Section 1158(d)(6). See

Perlera-Escobar v. EOIR, 894 F.2d 1292, 1296 (11th Cir. 1990); Castano v. INS,

956 F.2d 236, 238 (11th Cir. 1992). This plenary review, however, is tempered

with deference to the Board. See Perlera-Escobar, 894 F.2d at 1296 (we are

obliged to defer to the Board’s interpretation of the applicable statute when the

interpretation is reasonable).

As to the merits of Barreto’s claim for asylum, we review the administrative

record on which the order of removal is based to determine whether the evidence

presented was so compelling “that no reasonable factfinder could fail to find the

requisite fear of persecution.” 8 U.S.C. §§ 1252(b)(4)(A) - (B); see Elias-

Zacarias, 112 S.Ct. at 483-84.

V.

A. Frivolous Application

Section 1158(d)(6) reads:

If the Attorney General determines that an alien has knowingly
made a frivolous application for asylum and the alien has received the

8
 notice under paragraph (4)(A)9, the alien shall be permanently
ineligible for any benefits under this chapter, effective as of the date
of a final determination on such application.

8 U.S.C. § 1158(d)(6)(emphasis added).

The definition of frivolous application is set forth in the corresponding

regulations:

For applications filed on or after April 1, 1997, an applicant is subject
to the provisions of [Section 1158(d)(6)] only if a final order by an
immigration judge or the Board of Immigration Appeals specifically
finds that the alien knowingly filed a frivolous asylum application.
For purposes of this section, an asylum application is frivolous if
any of its material elements is fabricated. Such finding 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. § 208.18 (emphasis added). The regulations go on to state that “[a]n alien

is ineligible for asylum if he has firmly resettled in another country prior to his

arrival in the United States. See 8 C.F.R. § 208.13 (c)(2)(B). This regulation,

mandating denial of asylum in the United States, supports the doctrine of common

sense, as an alien who has resettled somewhere else is no longer in flight from

persecution or in need of refuge here. See Abadalla v. INS, 43 F.3d 1397, 1399-

9
Section 1158 (d)(4)(A), entitled ‘Notice of privilege of counsel and consequences of
frivolous application,’ states that “[a]t the time of filing an application for asylum, the Attorney
General shall (A) advise the alien of the privilege of being represented by counsel and of the
consequences, under paragraph (6), of knowingly filing a frivolous application for asylum.”

9
1400 (10th Cir. 1994)(an alien cannot bootstrap his asylum claim by unilaterally

severing his ties to a third country who gave him initial refuge).

Barreto filed two asylum applications, one in September 1998, and one in

February 1999, two days before his scheduled merits hearing.10 On his first

application, he stated falsely that he had never before applied for refugee or asylum

status. He compounded this falsehood with a fraudulent narrative of how he came

to the United States. We agree with the interpretation of the statute by the Board

that Barreto fabricated his answers in a knowing and deliberate manner. See

Section 1158(d)(6). We also agree with the Board’s interpretation of the

regulations that the fabricated answers were material to Barreto’s case as they

related to his six month stopover in a third country, Costa Rica. See 8 C.F.R. §§

208.18, 208.13(c)(2)(B).

Here, after Barreto was warned, he recanted the false answers to numbers

A.22 and C.7. We agree that a finding of frivolous shall only be made if the IJ or

Board is satisfied that Barreto had sufficient opportunity to account for any

discrepancies or implausible aspects of his claim for asylum. See 8 C.F.R. §

208.18. Here, rather than showing that his fabrications were neither material nor

10
It is undisputed that Barreto received the requisite notice under Section 1158(d)(4)(A).

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knowingly made, Barreto appears to be explaining, as the Board noted, “why

concededly material fabrications were knowingly made.”

Under our de novo review, we give due deference to the Board’s strict, no

tolerance statutory interpretation, that applicants must tell the truth or be removed.

This policy best supports the statute’s underlying purpose, as implemented by the

regulations, of discouraging frivolous applications.11 The decision by the Board

that Barreto filed a frivolous application is affirmed. See Stinson v. United States,

113 S.Ct. 1913, 1919 (1993) (“As we have often stated, provided an agency’s

interpretation of its own regulation does not violate the Constitution or a federal

statute, it must be given ‘controlling weight unless it is plainly erroneous or

inconsistent with the regulation.’”); Perlera-Escobar, 894 F.2d at 1296.

B. Merits of Claim for Asylum

Section 1158(a) of the Act authorizes the Attorney General, in his discretion,

to grant asylum to an alien who is “refugee” as defined in the Act, i.e., an alien

who is unable or unwilling to return to his home country “because of persecution

11
Synonyms for frivolous are “carefree, fanciful, fickle, giddy, flippant, nonchalant.”
Roget, International Thesaurus (3d ed.1965). The dictionary defines frivolous as “insignificant,
trivial, silly or gay.” Webster, New International Dictionary (3d ed. 1961). We note perhaps
that the statute is improperly captioned as “Frivolous Application.” A more appropriate caption
perhaps would be “Fraudulent Application.” Here we think that the record very clearly reflects
that Barreto was sincere, albeit fraudulent, in his application. He was not nonchalant or flip.
Neither was it insignificant or trivial to him.

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or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” See 8 U.S.C. §§

1101(a)(42)(A), 1158(a). Here the Board found that Barreto had not established

that he suffered past persecution or had a well-founded fear of future persecution

under the Act. Id.

The Board’s determination that Barreto was not eligible for asylum must be

upheld if “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” 8 U.S.C. § 1105a(a)(4); Elias-Zacharias, 112 S.Ct.

812, 815 (1992). It can be reversed only if the evidence presented by Barreto was

such that a reasonable factfinder would have to conclude that the requisite fear of

persecution existed. Id.

The Board found that the experiences described by Barreto did not rise to a

level of persecution, past or future. We agree.

As to past persecution, the record reflects that Barreto was not physically

harmed in Cuba, neither was he ever arrested or detained. At most, the evidence

presented reflects that when Barreto fell out of favor with the Communist Party, he

suffered employment discrimination, lost his job as a taxi driver and was forced to

take menial work. This type of employment discrimination which stops short of

depriving an individual of a means of earning a living does not constitute

12
persecution. See Zalega v. INS, 916 F.2d 1257 (7th Cir. 1990); Youssefina v. INS,

784 F.2d 1254 (5th Cir. 1986).

As to future persecution, Barreto claims that his anti-Castro political opinion

makes him susceptible to persecution and possible torture upon his return.

Barreto’s expert witness testified that he “will be in serious trouble when he

returns,” and would be “incarcerated or very seriously marginalized” in light of his

leaving Cuba illegally and his political opinion. Other than this opinion testimony,

there is no further evidence in the record to support this theory. Prosecution for

violating Cuba’s travel laws is not persecution within the meaning of the Act. See

Janusiak v, INS, 947 F.2d 46 (3d Cir. 1991).

We conclude that the Board’s determination that Barreto was not eligible for

asylum is supported by reasonable, substantial, and probative evidence on the

record which we have considered as a whole. Elias-Zacharias, 112 S.Ct. at 815.

Barreto failed to produce such sufficient evidence that a reasonable factfinder

would have to conclude that the requisite fear of persecution existed. Id.

VI.

The order of the Board dismissing Barreto’s appeal is

AFFIRMED.

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BARKETT, Circuit Judge, concurring in the judgment.

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