Almaghzar v. Gonzales
| Decision Date | 08 June 2006 |
| Docket Number | No. 04-35863.,04-35863. |
| Citation | 457 F.3d 915 |
| Parties | Abdul R. ALMAGHZAR, Petitioner-Appellant, v. Alberto R. GONZALES, Attorney General, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Philip James Smith, Portland, OR, for petitioner-appellant Abdul R. Almaghzar.
Kenneth C. Bauman, Assistant United States Attorney, Portland, OR, for respondent-appellee Alberto Gonzales, Attorney General.
Appeal from the United States District Court for the District of Oregon; Owen M. Panner, Senior Judge, Presiding. D.C. No. CV-04-01888-PA.
Before RAYMOND C. FISHER, RONALD M. GOULD, and CARLOS T. BEA, Circuit Judges.
ORDER AMENDING OPINION AND AMENDED OPINION
ORDER
Respondent's Unopposed Request for Modification of the Decision is GRANTED. The opinion filed on June 8, 2006, and published at 450 F.3d 415 (9th Cir. 2006), is AMENDED as follows.
On page 422 of the opinion, the first paragraph under the subheading begins as follows:
To receive the protection of the CAT, an alien must prove that it is more likely than not that the alien would be tortured if removed. 8 C.F.R. § 208.16(c)(2). An alien must establish that he or she would be tortured on account of a particular belief or immutable characteristic. Kamalthas, 251 F.3d at 1283. Because this a factual determination, the substantial evidence test governs our review. Monjaraz-Munoz, 327 F.3d at 895.
The second sentence of that paragraph is deleted, and the citation to Kamalthas is moved to follow the citation to 8 C.F.R. § 208.16(c)(2), so that the final paragraph now begins as follows:
To receive the protection of the CAT, an alien must prove that it is more likely than not that the alien would be tortured if removed. 8 C.F.R. § 208.16(c)(2); Kamalthas, 251 F.3d at 1283. Because this is a factual determination, the substantial evidence test governs our review. Monjaraz-Munoz, 327 F.3d at 895.
IT IS SO ORDERED.
Petitioner-Appellant Abdul Almaghzar (Almaghzar), a native and citizen of Yemen, appeals the district court's denial of his petition for a writ of habeas corpus. We construe his petition as a timely filed petition for review of a decision of the Board of Immigration Appeals (BIA).1 In his petition Almaghzar contends (1) that the frivolous asylum application bar was erroneously applied to his asylum application, (2) that the Immigration Judge (IJ) incorrectly disregarded testimony that explained discrepancies in Almaghzar's testimony, (3) that Almaghzar was not allowed to present a claim under the Convention Against Torture (CAT),2 (4) that Almaghzar's hearing violated his right to due process under the Fifth Amendment,3 and (5) that the IJ erred in concluding that Almaghzar's two prior criminal convictions were particularly serious crimes. In its reasoned opinion the BIA rejected these arguments, and we affirm.
Almaghzar arrived in the United States from Yemen in November of 1992. Almaghzar filed a Request for Asylum dated December 9, 1992, in which he gave an Anaheim, California, address. In his asylum application, Almaghzar stated that if forced to return to Yemen he feared persecution from pro-Communist forces there. The Immigration and Naturalization Service (INS) denied Almaghzar's application in March of 1994. Thereafter Almaghzar retained counsel, and his case was reopened and remained pending until 1998. Sometime between 1994 and 1998 Almaghzar moved to Oregon.4 In April of 1997 he married a U.S. citizen and filed an adjustment application. Before Almaghzar's application could be processed the marriage dissolved, and in 1998 the INS initiated removal proceedings against Almaghzar in Portland. At a hearing before the IJ on September 13, 1998, Almaghzar agreed to submit his original asylum application, which was then still pending in California, to the Immigration Court in Oregon. The parties disagree whether this submission was a new application for asylum, or was a transfer of Almaghzar's then-pending application.
On November 13, 1998, the IJ denied Almaghzar's application for asylum and withholding of removal because the IJ found that Almaghzar was not credible, and the IJ ordered Almaghzar removed to Yemen. Further, the IJ found that Almaghzar had filed a frivolous asylum application and that, as a result, he was "permanently ineligible for any benefits" under the Immigration and Nationality Act. 8 U.S.C. § 1158(d)(6). The IJ found that Almaghzar was not credible, in part because Almaghzar had told two different tales about his treatment in Yemen.5 At the time of the IJ's decision, relief under the CAT was not available because Congress had not yet implemented the provisions of the CAT prohibiting the return of aliens to countries where they would be in danger of suffering torture.6
Almaghzar appealed the IJ's decision to the BIA, but while his case was pending on that appeal he was charged by the United States with one count of fraudulently trading food stamps for methamphetamine in violation of 7 U.S.C. § 2024(b) and with one count of knowingly and intentionally distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1).7 He pled guilty to both charges on July 27, 2000, and on October 2, 2000, Almaghzar was sentenced to thirty-seven months in federal prison. After serving his sentence he was released into the custody of the INS and detained pursuant to 8 U.S.C. § 1226(c)(1)(B).8 The INS notified the BIA that Almaghzar had been convicted of distribution of methamphetamine, and the BIA construed this notice as a request for remand to the IJ, which the BIA granted.
The IJ, who had last conducted proceedings in this case in November 1998, then held another hearing on June 30, 2003. Almaghzar called as a witness Dr. Givi, a licensed clinical psychologist, in an effort to rehabilitate Almaghzar's earlier testimony that had been discredited by the IJ. Dr. Givi explained that as the basis for his testimony he had interviewed and observed Almaghzar, conducted "a large number of assessments," and reviewed documents from Almaghzar's attorney, including Almaghzar's pre-hearing statement, his Request for Asylum, his affidavit, the oral decision of the IJ, and Almaghzar's brief on appeal to the BIA.
Dr. Givi testified that Almaghzar suffered from post-traumatic stress disorder stemming from imprisonment and torture in Yemen and from sexual abuse suffered at a young age. Dr. Givi also testified that post-traumatic stress disorder often impairs memory and the ability to concentrate, and that these symptoms explained the inconsistencies in Almaghzar's prior testimony. Although Dr. Givi was aware of Almaghzar's conviction for distributing methamphetamine, Dr. Givi was not aware of Almaghzar's conviction for food stamp fraud. For this reason, the IJ disregarded Dr. Givi's testimony, concluding that Almaghzar's fraud conviction for his role in a complex criminal enterprise in which he had sold methamphetamine for food stamps was inconsistent with Dr. Givi's opinion that Almaghzar was incapable of complex, non-linear thinking.
At the same hearing Almaghzar offered evidence in support of his CAT claim, including reports detailing that torture does occur in Yemen. Almaghzar also testified at the hearing, offering an account of his activities in Yemen that differed from both Almaghzar's affidavit and his testimony at his first hearing. The IJ denied Almaghzar's request for asylum and for withholding of removal, found that Almaghzar had filed a frivolous application for asylum, found that Almaghzar had no valid claim under the CAT, and ordered Almaghzar removed to Yemen. Almaghzar appealed to the BIA, which affirmed the IJ's decision.
On a petition for review, the BIA's decisions regarding purely legal questions are reviewed de novo, "giving deference to the BIA's interpretation unless that interpretation is contrary to the plain and sensible meaning of the statute." Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004). BIA decisions regarding whether an alien is eligible for asylum must be affirmed if supported by substantial evidence. Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). "We review the BIA's findings of fact, including credibility findings, for substantial evidence and must uphold the BIA's finding unless the evidence compels a contrary result." Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003). Congress has codified this deferential standard of review. See 8 U.S.C. § 1252(b)(4)(B) ().
We first address Almaghzar's challenge to the IJ's determination that the frivolous asylum application bar applied in this case. The frivolous asylum application bar, id. § 1158(d)(6), renders an alien permanently ineligible for immigration benefits if his or her asylum application is found to be knowingly frivolous. The statute requires that an asylum applicant receive notice of the consequences of filing a frivolous application. Id. § 1158(d)(4)(A).9 Under the regulations implementing the frivolous asylum application bar, an application is frivolous "if any of its material elements is deliberately fabricated." 8 C.F.R. § 1208.20. The regulations require that a finding of frivolousness "only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim." Id. The frivolous asylum application bar applies to asylum applications filed on or after April 1, 1997. Id. Almaghzar does not challenge the substantive determination that his asylum application was frivolous. Rather, he argues that, because he filed his application in 1992, the frivolous asylum application bar does not apply to him. The...
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