Ahir v. Mukasey

• Decision Date: 02 June 2008
• Docket Number: No. 04-73464.,04-73464.
• Citation: 527 F.3d 912
• Parties: Kalavatiben AHIR, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

527 F.3d 912

Kalavatiben AHIR, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 04-73464.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2008.

Filed June 2, 2008.

Garish Sarin, Los Angeles, CA, for Petitioner.

Peter Keisler, Assistant Attorney General, Norah Ascoli Schwarz, Senior Litigation Counsel, John C. Cunningham, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A70-623-855.

Before: WALLACE, GOULD, and IKUTA, Circuit Judges.

WALLACE, Circuit Judge:

Kalavatiben Ahir petitions for review of a decision of the Board of Immigration Appeals (Board) affirming the Immigration Judge's (IJ) finding that her application for asylum was frivolous. We have jurisdiction to review orders of removal pursuant to 8 U.S.C. § 1252, and we deny the petition.

I.

Ahir, a native and citizen of India, entered the United States through Miami, Florida in March 1992 as a non-immigrant visitor. After overstaying her visa, Ahir filed an application for asylum in May 1994. In her application, Ahir alleged that in India she belonged to a "Hindu Sanatan group." She explained that the Sanatan group had been banned by the government, and that "we have been arrested several times for protesting against those atrocities." She also stated: "I have been arrested for no reason many times because I don't believe in the policies of the government." The application form used by Ahir in 1994 did not contain any explicit warning of the consequences for filing a frivolous application.

In March 1999, the Immigration and Naturalization Service (INS) terminated Ahir's application for asylum after she failed to appear at a scheduled hearing in Miami. The INS then filed a Notice to Appear, charging her with removability under section 237(a)(1)(B) of the Immigration and Nationality Act (INA). When Ahir failed to appear, the IJ proceeded in absentia and ordered her removed to India.

In December 2000, Ahir filed an unopposed motion to reopen her removal proceedings on the ground that she had not received notice of the 1999 hearing. The IJ granted the motion, as well as a subsequent motion for change of venue to Los Angeles, California.

On May 24, 2001, Ahir appeared at a removal hearing before an IJ in Los Angeles. At the hearing, her attorney conceded that Ahir was subject to removal, but stated that she had filed an application for asylum in 1994. He told the IJ that Ahir wished to renew her claim for asylum and withholding. He then submitted a new application, which he described as "an amendment" to the 1994 application. In response, the IJ warned Ahir's attorney that the 1994 asylum application could be used for impeachment purposes and that the attorney "should not assume that the update material you give to me is going to be without challenge by the Government."

Ahir's second asylum application contained additional details about her alleged persecution in India. Ahir explained that she had been a member of the "Samtha Group," which taught poor women "how to read and write and not to kill their female children...." She alleged that her involvement with this group "brought the anger of men especially from the Muslim community." She also specified:

I was arrested three times, the first in December, 1979, then June, 1980, and then in July, 1982. At all times, I was not presented in a court of law and told to stop my activities. At times, I was slapped and my hair was pulled by the police, as well, as hit by a stick. All three arrests were for some time ranging from 4 to 8 days.

Unlike her 1994 application, the application form submitted by Ahir in 2001 contained an explicit warning of the consequences for filing a frivolous application. Immediately above Ahir's signature was a conspicuous warning, in bold letters, that:

Applicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act.

On the same page, Ahir's attorney also signed a declaration that "the completed application was read to the applicant in his or her native language for verification before he or she signed the application in my presence."

After receiving Ahir's second asylum application, the IJ scheduled a hearing for February 13, 2003. One week before the hearing, however, Ahir's attorney requested a "continuance of her asylum merits hearing" on the ground that she was now eligible for adjustment based on an approved labor certification. The IJ granted a continuance, and her asylum hearing was rescheduled for January 23, 2004.

When the date of Ahir's asylum hearing arrived, her attorney presented the IJ with an application for adjustment of status, based on an approved labor certificate. At the start of the hearing, the IJ took notice of Ahir's adjustment application, but stated that her "asylum and persecution claim ... is the ultimate claim the respondent is asserting...." Ahir's attorney called only one witness, the owner of a jewelry store, who indicated that he was willing to hire Ahir.

The government then called Ahir to testify. The IJ started by reminding her that she remained under oath, and Ahir indicated that she understood. During its questioning, the government asked: "Have you ever been arrested or convicted of a crime anywhere in the world?" When Ahir responded in the negative, the government pointed out that her asylum application indicated otherwise, and asked her if the information in her application was false. She did not respond directly, but continued to insist that she had never been arrested. After several attempts to re-frame the question, the following exchange took place between the government and Ahir:

Q: Did you belong to any organizations in your country?

A: It was with an Indian Swami, yes.

Q: Did you belong to the Samatha Group?

A: Yes, yes, the Samatha Group.

Q: Were you ever arrested for being a member of the Samtha Group?

A: No, never.

At this point, Ahir's attorney asked if he could go off the record to speak with his client privately. The IJ refused, stating "I want a few more questions answered to me first." The IJ then asked Ahir whether she ever belonged to the "Hindi Samaton Group." She responded that she had. He then asked her if she had "ever had problems because of that membership," to which she responded: "No, none." Ahir's attorney then renewed his request to speak with his client privately off the record. The IJ denied his request, but offered him an opportunity to ask questions on redirect examination. In response to questions by her attorney, Ahir asserted that she filed an application for asylum because "the Muslims were harassing me." After repeated questioning by both the government and her own attorney, however, Ahir continued to insist that she had never been arrested anywhere in the world.

When the government and Ahir's attorney were finished, the IJ began his own questioning about Ahir's asylum applications. The IJ first engaged in a lengthy description of the precise discrepancies that concerned him. He read to Ahir exactly what she wrote on her 1994 and 2001 applications, and then asked her to explain why those applications did not match her current testimony. Ahir was unable to explain, and responded, "[a]t this moment, I'm not able to understand anything." The IJ then asked her directly: "Did you present to me a false claim for asylum, a made-up claim? You've never been persecuted or mistreated in India?" Ahir did not respond directly, and continued to insist that she had never been arrested.

At the conclusion of Ahir's testimony, the IJ issued an oral decision. He pointed out that when asked to explain the discrepancies between her asylum applications and her testimony, Ahir "either failed to explain ..., failed to even respond, or further contradicted her application." He then concluded that Ahir had filed a "fraudulent, frivolous claim for asylum" and demonstrated a "total disregard for the Immigration laws of this country, and the generous nature of this country and its people in regard to real individuals who seek asylum and protection from harm." By operation of INA § 208(d)(6), this finding of frivolousness required the IJ to deny Ahir's applications for adjustment of status and voluntary departure. In addition, he held that denial of those forms of relief was warranted as a matter of discretion.

Ahir appealed the IJ's decision to the Board. In her notice of appeal, she alleged she had been "confused and disoriented" when the IJ questioned her about her asylum applications, because she was only prepared to go forward with an adjustment application based on an approved labor certification. She also alleged that the IJ's finding of frivolousness was based "on speculation and conjecture, without any evidence...." Nowhere in her notice of appeal or subsequent appellate brief, however, did she allege any defect in the notice she received of the consequences of filing a frivolous asylum application.

The Board denied Ahir's appeal in a one-paragraph decision. The Board agreed that Ahir had filed a frivolous application and was therefore ineligible for any benefits under the INA.

II.

"We review the [Board's] determination of purely legal questions regarding the Immigration and Nationality Act de novo." Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). "To the extent the [Board] incorporates the IJ's decision as its own, we review both the decisions of the [Board] and IJ." Plasencia-Ayala v. Mukasey, 516 F.3d 738, 743 (9th Cir.2008).

Under INA section 208(d)(6), an alien found to have "knowingly made a frivolous application for asylum" despite receiving notice of the consequences, becomes "permanently ineligible for any benefits" under the statute. 8 U.S.C. § 1158(d)(6). Given the severity of these consequences, the...