578 F.3d 457 (6th Cir. 2009), 05-4488, Parlak v. Holder

Docket Nº:05-4488.
Citation:578 F.3d 457
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:Ibrahim PARLAK, Petitioner-Appellant, v. Eric H. HOLDER, Jr., Respondent-Appellee.
Attorney:David S. Foster, Latham & Watkins, Chicago, Illinois, for Petitioner. Christopher C. Fuller, United States Department of Justice, Washington, D.C., for Respondent. David S. Foster, John J. Marhoefer, Latham & Watkins, Chicago, Illinois, for Petitioner. Douglas E. Ginsburg, United States Departmen...
Judge Panel:Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges. GIBBONS, J., delivered the opinion of the court, in which SUTTON, J., joined. MARTIN, J. (pp. 471-81), delivered a separate dissenting opinion. BOYCE F. MARTIN, JR., dissenting.
Case Date:August 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 457

578 F.3d 457 (6th Cir. 2009)

Ibrahim PARLAK, Petitioner-Appellant,

v.

Eric H. HOLDER, Jr., Respondent-Appellee.

No. 05-4488.

United States Court of Appeals, Sixth Circuit.

August 24, 2009

Argued: Oct. 22, 2007.

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ARGUED:

David S. Foster, Latham & Watkins, Chicago, Illinois, for Petitioner.

Christopher C. Fuller, United States Department of Justice, Washington, D.C., for Respondent.

ON BRIEF:

David S. Foster, John J. Marhoefer, Latham & Watkins, Chicago, Illinois, for Petitioner. Douglas E. Ginsburg, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN, GIBBONS, and SUTTON, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which SUTTON, J., joined. MARTIN, J. (pp. 471-81), delivered a separate dissenting opinion.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner Ibrahim Parlak seeks review of the Board of Immigration Appeals'

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(" BIA" ) decision affirming the decision of the immigration judge (" IJ" ) ordering Parlak's removal from the United States pursuant to various provisions of the Immigration and Naturalization Act (" INA" ). Specifically, Parlak argues that the BIA erred by: (1) determining that Parlak was removable for fraud or willful misrepresentation pursuant to 8 U.S.C. § 1182(a)(6)(C)(i); (2) determining that Parlak was removable for engaging in terrorist activity pursuant to 8 U.S.C. § 1182(a)(3)(B)(i); (3) determining that Parlak's removal could not be withheld because he persecuted others and thus lacked refugee status under 8 U.S.C. § 1101(a)(42)(A), rendering him ineligible for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3); (4) failing to address properly the IJ's reliance on allegedly torture-induced evidence; and (5) denying Parlak's application for a grant of deferral of removal under the Convention Against Torture (" CAT" ).

I.

Parlak, a native and citizen of Turkey, entered the United States in 1991. He applied for asylum, alleging that Turkish officials persecuted him because of his leading role in the Kurdish freedom movement. In his application he indicated that he was a " leading member of ERNK, which had close ties to the PKK." ERNK refers to the National Liberation Front of Kurdistan, and PKK is the Kurdistan Workers Party. A narrative statement included with the application related political involvement since 1975 (when Parlak would have been thirteen years old) and periods of police custody associated with his political activities during which Parlak was beaten and tortured. The narrative continued with the following statements. Parlak fled to Germany in 1980, where he continued his political activities. When he sought extension of his passport, Turkish officials refused, telling him he was wanted by the Turkish police and should return to Turkey. He therefore used a false passport. In 1987 he went to Syria and then to Lebanon to join the PKK. He remained in a PKK camp in Lebanon for eight months. He then returned to Syria and attempted an illegal return to Turkey. His effort to cross the border on May 21, 1988, with a dozen friends was unsuccessful; he and his friends were met with gunfire and shot back. On July 1, 1988, Parlak and seven friends successfully crossed the border from Syria into Turkey. They conducted political activities promoting Kurdish freedom. Turkish soldiers attacked on more than one occasion; various friends disappeared or were killed or injured. On October 29, 1988, Parlak was arrested and tortured and given a death sentence.1 His family paid a bribe for his release. In 1991 a policeman told him that his file would be reopened and " they will be looking for [him]." He left the country with a false passport. Based on this application, Parlak was granted asylum in the United States.

In 1994 Parlak successfully applied for an adjustment of status to lawful permanent resident, and in 1998 he applied for naturalization. He did not mention the 1988 arrest and conviction referred to in his asylum application in either the 1994 or 1998 applications and checked " no" in response to questions asking whether he had ever been arrested, charged, or convicted for breaking any law. Parlak's naturalization application was denied, apparently due to an outstanding 1995 Turkish arrest warrant

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and the fact that the PKK had been designated a terrorist organization in 1997.

Parlak was then charged with being removable at the time of his adjustment of status due to false statements made on his application for adjustment of status, specifically, the denial of an arrest, charge, or conviction and the denial of lending support to terrorist activities. Additional charges were later added, which included allegations of terrorist activity between 1985 and 1988. The terrorist activities alleged included organizing ERNK events that collected money for the PKK, receiving firearms training from the PKK in Lebanon, and actions associated with the 1988 efforts to enter Turkey from Syria. Parlak was alleged to have exchanged gunfire in the May 21 incident, resulting in the death of two Turkish soldiers, and to have dropped a grenade on that same occasion. The charges referred to a March 2004 Turkish conviction at which the death of the two soldiers was imputed to Parlak. Parlak was also alleged to have transported firearms and explosives into Turkey about June 1, 1988.2 The IJ conducted a hearing and ruled against Parlak on all charges. The BIA affirmed most of the IJ's rulings 3 but vacated the IJ's finding that Parlak is an alien convicted of an aggravated felony. Parlak petitioned for review of the BIA decision in this court.

II.

This court reviews only the decision of the BIA. See Anssari-Gharachedaghy v. INS, 246 F.3d 512, 513 (6th Cir.2000). But " [w]here the BIA adopts the IJ's reasoning, the court reviews the IJ's decision directly to determine whether the decision of the BIA should be upheld on appeal." Gilaj v. Gonzales, 408 F.3d 275, 282-83 (6th Cir.2005).

We generally review the BIA's legal conclusions de novo, but we " defer to the BIA's reasonable interpretations of the INA." See Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir.2005). We review factual findings under a substantial evidence standard " in which we uphold a BIA determination as long as it is ‘ supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ " Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). " [U]nless any reasonable adjudicator would be compelled to conclude to the contrary," the BIA's findings of fact are " conclusive." 8 U.S.C. § 1252(b)(4)(B).

III.

We turn first to the BIA's ruling that Parlak was removable because he made material misrepresentations in his applications for adjustment of status and naturalization. Parlak argues that in finding him removable pursuant to 8 U.S.C. § 1182(a)(6)(C)(i), which makes any alien removable, " who, by fraud or willfully misrepresenting a material fact ... sought to procure ... a benefit under the [INA]," the BIA applied the incorrect legal standard. After the BIA's ruling, this court decided Singh v. Gonzales, 451 F.3d 400 (6th Cir.2006). Parlak argues that Singh requires the government to show " an intent to deceive" to establish fraud or willful misrepresentation of a material fact under 8 U.S.C. § 1182(a)(6)(C)(i). We review

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this issue of law de novo, while " defer[ring] to the BIA's reasonable interpretations of the INA." See Patel, 432 F.3d at 692.

A.

As an initial matter, the government contends that Parlak has waived this argument by not exhausting his administrative remedies pursuant to 8 U.S.C. § 1252(d)(1). Section 1252(d)(1) provides for appellate review of a final order of removal only if " the alien has exhausted all administrative remedies available to the alien as of right...." This exhaustion requirement is designed to " ensure that the ... agency responsible for construing and applying the immigration laws ... has had a full opportunity to consider a petitioner's claims...." Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir.2004) (quoting Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir.2004)).

Singh was not decided until after the BIA had already considered Parlak's claims and issued its decision, so presumably the government contends that Parlak should have filed a motion to reconsider with the BIA. But " [s]uch motions, as a general rule, need not be filed to exhaust administrative remedies." Perkovic v. INS, 33 F.3d 615, 620 (6th Cir.1994) (internal citation omitted). Therefore, we will address the merits of Parlak's argument that the BIA applied the wrong legal standard in finding Parlak removable pursuant to § 1182(a)(6)(C)(i).

B.

The BIA affirmed the IJ's finding that Parlak was removable pursuant to § 1182(a)(6)(C)(i) for his willful misrepresentation. The IJ interpreted § 1182(a)(6)(C)(i) as requiring that a willful misrepresentation be " deliberate and voluntary," but need not include an " intent to deceive." Parlak contends that Singh held that fraud or willful misrepresentation pursuant to § 1182(a)(6)(C)(i) requires a finding of an " intent to deceive." But Singh does not go so far.

Other courts of appeals and the BIA have consistently held that § 1182(a)(6)(C)(i) contains two alternative bases for removability: (1) fraud; or (2) willful misrepresentation of a material fact. See Mwongera v. INS, 187 F.3d 323, 330 (3rd Cir.1999); Witter v. INS, 113 F.3d 549, 554 (5th Cir.1997); Matter of Kai Hing...

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