Chen v. Mukasey

• Decision Date: 03 June 2008
• Docket Number: No. 07-72413.,07-72413.
• Parties: Xiao Min CHEN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

527 F.3d 935

Xiao Min CHEN, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-72413.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 12, 2008.

Filed June 3, 2008.

Howard Hom, Los Angeles, CA, for the petitioner.

John M. McAdams and Paul Fiorino, United States Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-642-340.

Before: STEPHEN S. TROTT, RICHARD R. CLIFTON, and CONSUELO M. CALLAHAN, Circuit Judges.

TROTT, Circuit Judge:

Xiao Min Chen, a native and citizen of China, seeks review of the Board of Immigration Appeal's ("BIA") decision affirming the immigration judge's ("IJ") decision declaring Chen's asylum application frivolous. At a hearing in April of 2002, Chen admitted that the contents of her asylum application were false, that the information she provided to an asylum officer in an April 1999 interview was false, and that the marriage and birth certificates she provided to the asylum officer were false. Consequently, the IJ found that, pursuant to 8 U.S.C. § 1158(d)(6), Chen had knowingly filed a frivolous application for asylum. Because a finding of frivolousness makes an alien permanently ineligible for benefits under the Immigration and Nationality Act ("INA"), the IJ denied both Chen's application for waiver of inadmissibility and her application for adjustment of status based on her marriage to a United States citizen.

Chen argues that because she withdrew the application prior to testifying in support of it and prior to a final determination on the application, the IJ erred. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D), and in light of a recent decision in the Second Circuit, we grant the petition and remand to the BIA to determine in the first instance the proper interpretation of 8 U.S.C. § 1158(d)(6).

I BACKGROUND

Chen entered the United States in 1998 on a non-immigrant P-3 visa to work as a folk dancer, but, after entering the United States, Chen never performed such work. The visa authorized her to remain in the United States until no later than April 26, 1999. When she stayed beyond that date, she was charged with and conceded removability.

In March of 1999, Chen presented an application for asylum, which we now know was rife with fraud. The signature page on the I-589 filed by Chen contains the following warning in bold font:

Applicants in the United States illegally are subject to removal if their asylum or withholding claims are not granted by an asylum officer or an immigration judge. Any information provided in completing this application may be used as a basis for the institution of, or as evidence in, removal proceedings, even if the application is later withdrawn. Applicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the [INA].

(emphasis added). Additionally, the Notice of Privilege of Counsel and Consequences of Knowingly Filing a Frivolous Application for Asylum, served on Chen's attorney on August 31, 1999, contained the following warning: "If you knowingly file a frivolous application for asylum YOU WILL BE BARRED FOREVER from receiving any benefits under the [INA]."

In her application, Chen claimed that she was married in China to a man named Hua Zhou and had two children. She said that when she became pregnant with her second child, she and her husband feared that they would be punished by the Chinese government. In spite of this fear, the couple was determined to have the child.

According to her application, when Chen was nearly four months pregnant, the factory where she worked conducted a routine health checkup, and her pregnancy was discovered. Chen was ordered to the factory's office, and a hospital was contacted to perform an abortion. Chen claimed that the people at the factory "began to plot and force me to the hospital. I struggled with all my might. However I was finally forced to get into the factory's van because I was afraid of injury to the fetus."

When Chen got to the hospital, she felt nearly hopeless and "even thought of death." She refused to sign the required documentation until the staff agreed to let her call her husband to come to the hospital. While she was supposed to be making the phone call, she ran outside and escaped in a taxi. After her escape, Chen claimed she could not go home because people from the factory went to both her house and her parent's house daily trying to find her. She stayed with relatives until the baby was born in May of 1998. In July of 1998, two months after the alleged birth of her second child, Chen came to the U.S. to escape the "nightmare" of her life in China.

In May of 1999, during a hearing, Chen was advised by an IJ that if she knowingly filed a frivolous application for asylum, she would be permanently barred from receiving immigration benefits. The IJ informed Chen that a "frivolous application for asylum is one which contains statements or responses to questions that are deliberately fabricated or made up." After Chen acknowledged that she understood the warning, the IJ said:

Understanding that ma'am, do you still wish me to consider this application in deciding your request for asylum? Ma'am you should answer on your own because if this is a bad application that has frivolous information in it, you are the one whose [sic] barred forever, not this attorney. And I see you looking at him and he is giving you clues on how to answer by shaking his head. So you can do what he tells you by his head shakes but you're the one that's bound by it, ma'am. So take your answer very seriously because I'm not going to say later, Oh, that poor lady, she only said she wanted me to consider this document cause her attorney said to. I'm going to say, That lady told me to consider it and if it's frivolous ma'am, that's it on the benefits. No asylum, no withholding,¹ no Convention Against Torture, nothing. Do you understand?

After being permitted time to go off the record and discuss the matter with her attorney, Chen told the IJ that she wished him to consider the application in deciding her request for asylum. Chen's attorney told the IJ "we'd like to have time to file some supplemental materials, maybe ... and also maybe an affidavit." The IJ accepted Chen's application for filing and consideration and continued the removal hearing until November 15, 1999.

In November of 1999, Chen appeared before an IJ with new counsel. Her attorney informed the IJ that "we wish to perhaps do a withdrawal of the asylum and do an adjustment of status [based on Chen's marriage to Ping Yang, a U.S. citizen]." Counsel requested a continuance until January of 2000 to review the record, prepare, and file the adjustments. Chen's attorney told the IJ that, as of November 1999, Chen's husband had not yet filed an I-130 petition requesting a visa for Chen. He had also not filed an I-485 application for adjustment of status for Chen.

In January of 2000, Chen returned to court and told the IJ that her husband had filed an I-130 and an I-485 on her behalf. A status discussion of the I-130 was set for November of 2000, and the IJ requested Chen inform the court should the I-130 be approved prior to that date. In November of 2000, May of 2001, and November of 2001, Chen's counsel told the IJ that the I-130 had not yet been approved. The Immigration and Naturalization Service ("INS")² finally granted the I-130 petition in February of 2002.

On April 25, 2002, Chen and her attorney appeared before an IJ for a continued removal proceeding. During that proceeding, the following dialogue occurred:

Judge to Ms. Calillo [Chen's counsel]

Q: And, counsel, off the record you indicated to me that you have reviewed the tapes. I was not the Judge starting this case and your understanding is this [application] has been previously withdrawn, but to be abundantly cautious in this case, are you going to withdraw the application?

A. Yes, Your honor.

...

Judge to Ms. Fontova [government counsel]

Q. Ms. Fontova, you indicated your file, as well as my file, does not indicate that there has been a withdrawal. Is that correct?

A. The notes didn't indicate such, Your honor.

...

Judge to Ms. Calillo

Q. So as of today, I'm showing, Ms. Calillo, that the asylum application has been withdrawn as indicated, that's what you are requesting.

...

Ms. Calillo to Judge

...

Q. If you'd like a date on when it was withdrawn, it was November 15th.

A. That's fine. No problem.

...

A. I've shown it's withdrawn. I believe you, it's just for clarification purposes so that Ms. Fontova's and my file, as far as the record, or [sic] paperwork will be clear.

In that same hearing, Chen testified that the contents of her asylum application were false, and that the information she provided to an asylum officer in an interview in April of 1999 was false. She further admitted that the marriage and birth certificates she provided to the asylum officer were false, and that she knew they were false when she provided them. Chen was not married in China, nor did she have any children in China. Chen confessed that she was actually married to Ping Yang, whom she met after entering the United States. The couple was married in the United States in October of 1999.

Chen has no children. She testified also that the information in her application indicating that she feared the Chinese government's birth control policy was false.

The IJ questioned Chen:

Q. Well, ma'am, how am I going to believe you today that you're married to this gentleman not for getting an immigration benefit when you have lied, in my opinion, to get your visa as a performer, and you have lied to the asylum officer in Anaheim to get asylum, it looks like you've lied to stay here on a number of occasions. How do I know that you didn't marry this guy just to get a green card...