Fernandes v. Holder Jr.

• Decision Date: 20 August 2010
• Docket Number: No. 07-72415.,07-72415.
• Citation: 619 F.3d 1069
• Parties: Jacinto Pascoul FERNANDES, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

619 F.3d 1069

Jacinto Pascoul FERNANDES, Petitioner,

v.Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-72415.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted July 15, 2010.

Filed Aug. 20, 2010.

Daniela R. Razawi, Law Office of Daniela R. Razawi, Lincoln, CA, for petitioner Jacinto Pascoul Fernandes.

Gregory G. Katsas, Acting Assistant Attorney General, Barry J. Pettinato, Assistant Director, and Terri Leon-Benner and Katharine E. Clark, Trial Attorneys, Office of Immigration Litigation, United States Justice Department, Civil Division, for respondent Eric H. Holder Jr., United States Attorney General.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095-402-188.

Before: WILLIAM A. FLETCHER and MILAN D. SMITH, JR., Circuit Judges, and JAMES DALE TODD, Senior District Judge. ^*

OPINION

M. SMITH, Circuit Judge:

Jacinto Pascoul Fernandes, an Indian citizen, petitions for review of the Board of Immigration Appeals' (BIA's or Board's) decision denying his application for asylum and withholding of removal on the ground that he filed a fraudulent asylum application and was not credible. We deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

Fernandes seeks asylum and withholding of removal based on alleged persecution for his Christian beliefs and for imputed political opinion. ¹ Although Fernandes's story varied throughout the immigration proceedings, he generally alleges that his persecution arose out of an arrest at a Sikh rally which he attended as a sympathizer to the plight of non-Muslim religions in India.

I. Asylum Application and Hearing

In his asylum application, Fernandes claimed that he was beaten by police after his arrest at the Sikh rally, and that a year later the police came to his home looking for him. Unable to find Fernandes, they arrested his wife and infant child instead. Fernandes claimed that his wife was raped while in custody.

During his first asylum hearing, Fernandes testified about his alleged arrest at the Sikh demonstration and the subsequent arrest of his family. He also said that the police returned to his home a second time and that drunk officers tied him to a chair, beat him, and threatened that he would be killed unless he fled the country. On cross-examination, Fernandes admitted that he had joined the Sikh demonstration in 2000 because he sympathized with their causes but that he did not know much about the Sikh religion. He acknowledged that hundreds of participants, including other Christians, took part in the demonstration. He said that his neighbors, who were Hindus, told the police that he would be attending the demonstration but could not explain why he was targeted.

Fernandes also testified about a number of facts that he later admitted were false. He claimed that he lived with a friend in Elk Grove, California; that he had been employed as a hotel musician in India; and that he had last spoken to his wife the day before the initial hearing before the IJ. He also stated that he attended a Catholic church in Elk Grove and that he rode his bicycle to church. During the hearing, Fernandes declined the opportunity to make changes to his declaration or application.

Fernandes also admitted that he was fluent in English, even though he had previously claimed that he did not speak English when requesting a translator. ² He explained this discrepancy by saying he was afraid to admit that he spoke English because he thought he would be in trouble for requesting a translator. He did not explain why he requested a translator in the first place.

Finally, when asked about a conflict between his application, which indicated that he had been unemployed since October 1996, and his testimony, in which he claimed to have worked as a professional musician until 2001, Fernandes claimed that Boota Singh Basi (Basi), his application preparer, had made an error. When asked to explain this inconsistency further, Fernandes said: “I have no answer for that.”

II. First IJ Decision

The IJ issued a lengthy opinion denying Fernandes's application. The IJ did not make an adverse credibility finding, but she repeatedly expressed doubt about his credibility and stated that she could not “give his testimony full weight as evidence.” The IJ noted ambiguities and inconsistencies in the record, including the fact that Fernandes had an opportunity to correct his lie about speaking English, but chose not to do so. The IJ also found that Fernandes failed to demonstrate a “nexus” between the alleged harm and a protected ground, thus concluding that he was not entitled to asylum or withholding of removal.

III. First BIA Decision

On appeal, the BIA held that it would assume that Fernandes was credible because the IJ had not made an explicit adverse credibility finding and had not identified any bases sufficient to support such a finding. Based on that assumption, the BIA found that Fernandes had satisfied his burden of proving past persecution, which gave rise to a rebuttable presumption that Fernandes would face future persecution. Accordingly, the BIA remanded the case to the IJ to provide the Department of Homeland Security (DHS) an opportunity to provide additional evidence to rebut the presumption that Fernandes has a well-founded fear of future persecution. The remand order stated:

[T]he record will be remanded to allow the DHS an opportunity to establish that since the time the persecution occurred conditions in the respondent's country have changed to such an extent that the respondent no longer has a well-founded fear of being persecuted if he were to return to his country. Accordingly, the following order is entered.

ORDER: The appeal is sustained and the record is remanded for further proceedings consistent with the foregoing opinion.

IV. Second Asylum Hearing

On remand, the government filed a motion with the IJ to reopen under 8 C.F.R. § 1003.23, seeking to introduce new evidence that Fernandes had knowingly filed a fraudulent asylum application. In its motion, the government proffered the testimony of Basi, who had prepared Fernandes's application. Basi and his partner Kashmir Singh Malhi (Malhi) ran a business preparing fraudulent asylum applications, and Basi pled guilty to conspiracy to make false statements under oath with respect to asylum applications. ³ The IJ granted the government's motion to reopen, over Fernandes's objection.

At the second asylum hearing, Basi testified that he and Mahli had operated a business creating and filing false asylum applications for Indian aliens. Basi pled guilty to charges stemming from this conduct. Although testifying against his former clients was not a formal condition of Basi's plea agreement, Basi agreed to cooperate with the government by testifying against former clients and, in exchange, received a reduced sentence of eleven months (time served). To orchestrate their fraudulent scheme, Basi and Malhi had their clients sign blank asylum applications. Basi and Malhi then completed the applications by inserting entirely fabricated stories of persecution, except for some accurate basic information. ⁴ Basi testified that none of his clients had ever presented him with a genuine claim and that every application he had ever filed was false.

Basi also testified that he recognized Fernandes as a former client for whom he had filed a fraudulent asylum application. He stated that Fernandes had responded to one of Basi's advertisements and that they had met in New York to discuss the application. Because Fernandes lived in New Jersey, Basi used his friend's California address on Fernandes's application. As was his practice, Basi gave Fernandes a blank asylum form and asked him to sign it and provide the basic biographical information. Basi then returned to California and created a fictional story about Fernandes's arrest at a Sikh rally. As the hearing date neared, Fernandes flew to California, where Basi coached him for two to three days to help him learn the false narrative and prepared him to testify concerning it.

During the hearing, Basi was presented with a folder that the INS had confiscated from his office. He identified it as his work folder for Fernandes's application. Basi testified that his recollection of Fernandes's case was particularly good because Fernandes was one of his few Christian clients-the majority of his clients being Sikh.

Next, Fernandes took the stand and admitted that he had given a false California address and that Basi had prepared his asylum application. He admitted that he had contacted Basi for help with his asylum application and that the pair had met in New York. He said that he told Basi about his persecution in India and that Basi took notes on the story. Fernandes said that he signed a blank asylum application with the understanding that Basi would complete the application for him.

In addition to acknowledging the false address, Fernandes admitted in direct testimony that a statement in the application about Christians being burned alive in India was a lie added by Basi. On cross-examination, Fernandes also admitted that he had lied under oath about the following facts: (1) that a minivan dropped him off in Elk Grove, California; (2) that he lived in Elk Grove; (3) that he rode a bicycle to church in Elk Grove; (4) that he worked at a Mobil station in New Jersey; and (5) when he had last contacted his wife. He also admitted that he never provided a written personal statement to Basi, as he had earlier claimed.

V. Second IJ Decision

In her second decision, the IJ found Fernandes not credible and denied his application for asylum, withholding of removal, and CAT relief. First, the IJ held that she had jurisdiction to consider the government's motion to reopen because the BIA's remand order was not limited. The IJ found that granting the motion to reopen was warranted because the new evidence was relevant to the case. She also held...