Ndibu v. Lynch

• Citation: 823 F.3d 229
• Decision Date: 19 May 2016
• Docket Number: No. 14–2250.,14–2250.
• Parties: Henri Kamenga NDIBU, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

823 F.3d 229

Henri Kamenga NDIBU, Petitioner

v.Loretta E. LYNCH, Attorney General, Respondent.

No. 14–2250.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2016.

Decided: May 19, 2016.

ARGUED: Allison Lukanich, Melo & Hurtado PLLC, Raleigh, North Carolina; Jim Melo, U.S. Committee for Refugees & Immigrants, Raleigh, North Carolina, for Petitioner. Jennifer A. Singer, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Nitin Kumar Goyal, Kevin Schroeder, Melo & Hurtado PLLC, Raleigh, North Carolina, for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Russell J.E. Verby, Senior Litigation Counsel, Nancy K. Canter, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit Judges.

Petition for review denied by published opinion. Chief Judge TRAXLER

wrote the opinion, in which Judge THACKER and Judge Harris joined.

TRAXLER

, Chief Judge:

Henri Kamenga Ndibu petitions for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) which affirmed the immigration judge's conclusion that Ndibu filed a frivolous asylum application and was therefore ineligible for adjustment of status. For the reasons that follow, we deny Ndibu's petition for review.

I.

Ndibu, a native and citizen of the Democratic Republic of the Congo (“DRC”), entered the United States in September 2001 using a Canadian passport that did not belong to him. In July 2004, after evading the attention of immigration officials for nearly three years, Ndibu filed an affirmative application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Ndibu claimed that he feared persecution on account of his political opinion were he to return to the Congo. According to Ndibu's supporting affidavit, he was living in the DRC in June 2003 when he was arrested by government security forces because of his membership in the Army of Victory Church and participation in the “Let us Save the Congo” movement. Ndibu alleged that he was detained for 15 days, during which time he was “endur [ing] severe mistreatments, ... sexual abuses imposed over us by the police officers, and other types of tortures.” J.A. 1542–43.

In September 2004, the Department of Homeland Security (“DHS”) placed Ndibu in removal proceedings, charging him with removability for being present in the United States without valid documentation.

See 8 U.S.C. §§ 1227(a)(1)(A)

; 1182(a)(7)(A)(i)(I). At the removal hearing, Ndibu testified and essentially repeated the claims he asserted in his affidavit. In April 2006, the immigration judge denied Ndibu relief from removal. The immigration judge concluded that Ndibu failed to demonstrate that he filed his asylum claim within one year of entering the United States, finding that Ndibu's testimony that he arrived in the United States in 2003 was not credible and that he failed to present other evidence supporting an entry date of 2003. The immigration judge offered specific reasons for its adverse credibility determination in this regard. Additionally, the immigration judge concluded that Ndibu failed to establish “a clear probability of persecution” and denied his claim for withholding of removal. Singh v. Holder, 699 F.3d 321, 332 (4th Cir.2012) (“To prevail on his withholding of removal claim, [the applicant] must establish a clear probability of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group.” (internal quotation marks omitted)). In explaining her decision, the immigration judge implied that Ndibu lacked credibility regarding his “membership in the political organizations that he claimed to have belonged to,” J.A. 302, but did not provide specific reasons for doubting Ndibu's credibility in this regard. Furthermore, the immigration judge stated that even if Ndibu's testimony had been credible regarding his political affiliations, the evidence still would have failed to demonstrate a “a clear probability of persecution” if he returned to the DRC. J.A. 302. And, finally, the immigration judge denied relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c), stating summarily that Ndibu failed to show “that it would be more likely than not that [Ndibu] would be tortured if he were removed to the [DRC].” J.A. 303.

Ndibu appealed, and in April 2008, the BIA affirmed the denial of asylum, concluding that substantial evidence supported the immigration judge's conclusion that Ndibu “failed to establish, through clear and convincing evidence, that his asylum application was filed within one year of his arrival in the United States.” J.A. 261. As to the immigration judge's denial of withholding of removal and relief under the CAT, however, the BIA found the decision to be “inadequate for purposes of our appellate review.” J.A. 261. The BIA concluded that the immigration judge “did not adequately explain the reasons for her adverse credibility finding as to [Ndibu's political affiliation].” J.A. 261. The BIA also rejected the alternative conclusion that Ndibu's evidence would have been insufficient even if Ndibu's testimony had been credible because the immigration judge “failed to make a specific finding as to whether such past treatment, if credible, constituted persecution on account of a protected ground, and, if so, why the presumption of 8 C.F.R. § 1208.16(b)(1)

would be overcome.” J.A. 262.¹ Thus, the BIA remanded the matter “for a more complete decision” as to the withholding and CAT claims.

In September 2008, Ndibu failed to appear before the immigration judge for the remanded proceedings, and he was ordered removed in absentia. In November 2010, however, the immigration judge granted Ndibu's motion to reopen proceedings on the grounds that Ndibu did not receive sufficient notice of the hearing following remand from the BIA.

During the proceedings on the remanded claims for relief from removal, Ndibu, represented by new counsel, applied for an adjustment of status on the basis of his marriage to a United States citizen in 2002. See 8 U.S.C. § 1255(a)

. “Because an alien seeking to adjust his status [to that of a lawful permanent resident] is in a position similar to that of an alien seeking entry into the United States,” Ferrans v. Holder, 612 F.3d 528, 531 (6th Cir.2010), he is required to establish that he is admissible in the first place, see 8 U.S.C. § 1255(a). The admissibility requirement was problematic for Ndibu, who admitted to the immigration court that he had previously “sought to procure an immigration benefit by fraud or by concealing or misrepresenting a material fact,” J.A. 1000, in that (1) he first entered the United States in 2001 using a “Canadian Passport issued to Charles Legault” and (2) he “[made] false statements to the Immigration Court so that [he] could obtain asylum,” J.A. 1001. An alien is inadmissible who “by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under [the INA].” 8 U.S.C. § 1182(a)(6)(C)(i). Therefore, Ndibu applied for a waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i), which permits the Attorney General, in her discretion, to “waive the application of [§ 1182(a)(6)(C)(i) ] in the case of an immigrant who is the spouse ... of a United States citizen.”

At the waiver hearing, Ndibu testified that he entered this country on September 8, 2001, using the aforementioned Canadian passport which was obtained for him by his parents because they believed it was unsafe for then–19–year–old Ndibu to remain in the DRC. Ndibu claimed that he did not want to enter the United States under false pretenses but eventually acceded to pressure from his parents. Ndibu married his wife, a United States citizen, in December 2002. He subsequently asked his brother, who enjoyed permanent legal resident status, to help him adjust his status. Ndibu's brother incorrectly advised him that the only way for him to obtain an adjustment of status was to apply for asylum, and referred Ndibu to a friend named George, who was not a lawyer but prepared the asylum application for Ndibu and helped him file it in 2004. Ndibu testified that George had concocted the facts supporting his asylum claim that he feared political persecution if he were to return to the DRC, and Ndibu admitted falsely testifying at the asylum hearing that he was tortured and sexually abused during his alleged 2003 detention. Likewise, Ndibu admitted to the court that his application falsely represented that he arrived in 2003 and that he signed the asylum application knowing that it was false. Ndibu also acknowledged that he lied on the application by stating that he was not married.²

Ndibu nonetheless suggested to the immigration court that, despite having made a mistake in agreeing to submit a false asylum claim, he had otherwise lived as a law-abiding member of the community and that he was worthy of a fraud waiver to enable him to adjust his status and remain in the United States with his family.

On May 23, 2013, the immigration judge issued an order denying Ndibu's applications for a waiver of inadmissibility and an adjustment of status. The immigration judge found that Ndibu “knowingly made a frivolous application for asylum,” 8 U.S.C. § 1158(d)(6)

, and “ ‘deliberately fabricated’ material elements of his claim after having been advised of the consequences for so doing,” J.A. 77 (citing 8 C.F.R. § 1208.20 ). The court specifically noted that Ndibu “knew it was false when he claimed [that he was] tortured and sexually abused in the Congo,” J.A. 77, even though the I–589 asylum application Ndibu signed expressly warned against filing a frivolous claim for asylum. As...