Dhital v. Mukasey

• Decision Date: 17 July 2008
• Docket Number: No. 06-75043.,06-75043.
• Citation: 532 F.3d 1044
• Parties: Sanjeeb Sharma DHITAL, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

532 F.3d 1044

Sanjeeb Sharma DHITAL, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-75043.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2008.

Filed July 17, 2008.

Elisa C. Brasil, Law Offices of Kaiser and Capeci, San Francisco, CA, argued the cause for the petitioner and was on the opening brief; Dominic E. Capeci, Law Offices of Kaiser and Capeci, San Francisco, CA, filed the briefs.

Sarah Maloney, Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC, argued the cause for the respondent; Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation, filed a brief; Annette J. Clark, Of Counsel, Office of Immigration Litigation, Terri Scadron, Assistant Director, Office of Immigration Litigation, and Peter D. Keisler, Assistant Attorney General, Civil Division, were on the brief.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-625-778.

Before: DIARMUID F. O'SCANNLAIN and HAWKINS, Circuit Judges, and JAMES V. SELNA,^* District Judge.

PER CURIAM Opinion; Concurrence by Judge O'SCANNLAIN.

PER CURIAM:

We must decide whether an Immigration Judge properly denied admissibility to a noncitizen student who admitted to having previously obtained asylum under a false identity.

I

A

Sanjeeb Sharma Dhital, a native and citizen of Nepal, was admitted to the United States on an F-1 student visa in 1998. Dhital enrolled at Lincoln University in San Francisco, California, and later transferred to Laney College in Oakland, California. In January 2003, Dhital failed to enroll in the next semester of classes at Laney College and has not attended any educational institution since.

On September 2, 2004, approximately twenty months after Dhital's last day in school, the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") served him with a Notice to Appear, alleging that his failure to attend classes was a violation of his student visa that rendered him removable under 8 U.S.C. § 1227(a)(1)(C)(i).

At a hearing before an immigration judge ("IJ"), Dhital admitted the allegations in the Notice to Appear and conceded removability. He also applied for asylum, withholding of removal, protection under the Convention Against Torture ("CAT") and voluntary departure. In addition, he confessed that he previously had been granted asylum under a false identity.

B

Dhital claims he was a popular political activist in Nepal who opposed the Maoists, an insurgent group that has fought against Nepal's constitutional monarchy since 1996. According to Dhital, he was approached in January 1997 by a Maoist leader who encouraged him to join the Maoist movement and threatened to harm him if he did not. Dhital refused the overture, and he was attacked outside his home four months later by the Maoist leader and a group of five or six other people. Eight months after such incident, Dhital applied for a student visa to come to the United States, an act he claims was motivated by fear of further retribution by the Maoists.

Once he arrived here, Dhital alleges that he started writing anti-Maoist articles and sending them to a friend to distribute in Nepal. In response, Maoists went to Dhital's parents' home in Nepal and threatened to kill Dhital unless he ceased his writing campaign and paid the group a ransom. Dhital continued sending his letters, but began signing them under various pseudonyms. The Maoists were not fooled and again told Dhital's parents that they would harm Dhital unless he abandoned his efforts. Soon after, Dhital claims that the Maoists seized his parents' land and that his sister fled the country.

As a result of these developments, Dhital says he feared that the Maoists' "international network" would pursue him in the United States. Accordingly, he alleges that he assumed a "very low profile" and acquired a fraudulent Bhutanese national identity card containing his photograph and the name "Pugman Sharma." He decided to apply for asylum using the false ID, later explaining that he believed it was the only way he could obtain legal status in the United States and that it offered the additional benefit of allowing him to avoid detection by the Maoists.

Thus, claiming to be Sharma, Dhital hired an attorney and explained that he was a Bhutanese citizen of Nepali origin and Hindu beliefs who was fleeing religious persecution in Bhutan. Dhital spoke Hindi to the attorney, purporting to speak very little English, and told the attorney that he escaped Bhutan in 2000 and entered the United States without inspection by crossing the Canadian border. The attorney then filed an asylum application on Sharma's behalf, and Dhital repeated his story during an asylum interview and at a hearing before an IJ. The IJ granted Sharma's application for asylum.

C

Two weeks later, Dhital declined to enroll in the next semester of classes at Laney College. At the same time, he began introducing himself as Sharma and, soon after, used Sharma's asylee status to obtain a refugee travel document, visa, driver's license, social security number and employment authorization card; to open a bank account; and to travel to India. Dhital also applied for permanent resident status under Sharma's name. Dhital did not entirely abandon his true identity, however. He renewed his Nepalese passport in 2002 under his true name and address and used the same information to apply for 11 credit cards over the Internet between 2001 and 2003.

On September 2, 2004, after discovering that Dhital had not attended classes for approximately twenty months, agents from ICE arrived at his home and served him with a Notice to Appear. Dhital never attempted to convince the officers that he was Sharma, but he was unable to produce any identification documents, explaining that he had given them to a friend for "security reasons." He later explained that he destroyed other materials, such as the anti-Maoist articles he allegedly wrote, for the same purpose.

D

Dhital, represented by new counsel, received a removal hearing before the same IJ who granted Sharma's application for asylum. The IJ denied each of Dhital's claims for relief. The Board of Immigration Appeals ("BIA" or the "Board") affirmed in a separate opinion, concluding that Dhital's first asylum application was a frivolous filing that permanently barred him from obtaining such relief under 8 U.S.C. § 1158(d)(6). In the alternative, the BIA determined that Dhital's second asylum application was untimely because it was filed more than one year after Dhital entered the United States and no "extraordinary circumstances" justified the delay. See id. § 1158(a)(2)(D). Next, the BIA affirmed the IJ's determination that Dhital's lack of credibility rendered him ineligible for withholding of removal. Finally, the BIA determined that Dhital did not qualify for CAT relief because he failed to present any credible evidence that he would be tortured upon his return to Nepal by the Nepalese government or by the Maoists with the government's acquiescence.¹

Dhital timely filed this petition for review.

II

A

Section 208 of the Immigration and Nationality Act ("INA") provides that "[i]f the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter." 8 U.S.C. § 1158(d)(6); see id. § 1158(d)(4)(A) (stating that "[a]t the time of filing an application for asylum, the Attorney General shall . . . 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"). Dhital does not dispute the BIA's substantive determination that his first application was frivolous, but argues that he did not receive adequate notice of the consequences of his action.

In a recent decision, the BIA provided guidance as to when an asylum application may be found frivolous in accordance with the INA and applicable regulations. See In re Y-L-, 24 I. & N. Dec. 151, 155 (2007). However, the BIA dismissed Dhital's appeal seven months before it decided In re Y-L-. In another case where the BIA's decision pre-dated In re Y-L- and where the petitioner also challenged the adequacy of notice, we remanded the petition for review so that the BIA could "apply the standards set forth in In re Y-L- to Petitioner's case in the first instance." Kalilu v. Mukasey, 516 F.3d 777, 779 (9th Cir.2008) (per curiam); see also Ahir v. Mukasey, 527 F.3d 912, 916-18 (9th Cir. 2008) (declining to remand an identical claim only because the petitioner failed to exhaust such claim before the BIA).

If the BIA's frivolousness determination were the sole basis on which it denied Dhital's asylum application, a remand would also be required here. However, because the BIA articulated an alternative ground for its decision, we turn to that ground to determine whether it is sufficient to support the BIA's decision.

B

The INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, requires an asylum application to be filed "within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). There are two exceptions to this rule: if "the alien demonstrates to the satisfaction of the Attorney General either [1] the existence of changed circumstances which materially affect the applicant's eligibility for asylum or [2] extraordinary circumstances relating to the delay in filing an application," the agency may grant his application even if it is filed after the one-year deadline. Id. § 1158(a)(2)(D). Dhital did not submit his second asylum application until six years after he arrived in the United States, and the BIA found no "extraordinary circumstances" to justify the delay.

We...