Jashari v. Sessions, 17-3457

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtWHITE, Circuit Judge.
PartiesABAZ JASHARI, Petitioner, v. JEFFERSON B. SESSIONS, III, Attorney General, Respondent.
Docket NumberNo. 17-3457,17-3457
Decision Date25 January 2018

ABAZ JASHARI, Petitioner,
JEFFERSON B. SESSIONS, III, Attorney General, Respondent.

No. 17-3457


January 25, 2018

File Name: 18a0050n.06


BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

WHITE, Circuit Judge. Petitioner Abaz Jashari seeks review of a final order of removal issued by the Board of Immigration Appeals. Jashari argues that the Board erred (1) by failing to treat Jashari's false testimony as "timely retracted," (2) by finding that Jashari had filed a frivolous application for asylum, (3) by finding that Jashari had withdrawn his application for withholding of removal, (4) by denying Jashari's motion to reopen the removal proceedings based on the allegedly ineffective assistance of counsel, and (5) by failing to remand to the Immigration Judge to address allegedly changed circumstances stemming from Jashari's conversion to Christianity. For the reasons that follow, we affirm.

I. Background

Abaz Jashari was born in Kosovo on April 8, 1973. Jashari is a citizen of the former Yugoslavia, and further identified as a Muslim Albanian Kosovar. Jashari entered the United

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States at an unknown place and time and has provided conflicting information concerning the date, place, and manner of his entry. Jashari's wife and three children have U.S. citizenship.

On January 11, 2008, Jashari filed a Form I-589 "Application for Asylum and for Withholding of Removal" with U.S. Citizenship and Immigration Services (USCIS). Form I-589 is the vehicle by which immigrants can request three different kinds of relief: asylum, withholding of removal, and protection pursuant to the U.N. Convention Against Torture (CAT). Jashari requested all three forms of relief. At this time, Jashari was represented by attorney Svetlana Schreiber.

Prior to filing his I-589, Jashari received a letter informing him of the "consequences of knowingly filing a frivolous application for asylum in the United States." (R. 530.) The letter noted that if Jashari "knowingly file[d] a frivolous application for asylum, [he] WILL BE BARRED FOREVER from receiving any benefits under the Immigration and Nationality Act." (Id. (emphasis in original).) The letter defined a "frivolous" application as "one which contains statements or responses to questions that are deliberately fabricated." (Id.)

Jashari was interviewed by an asylum officer on May 20, 2008, with the assistance of an Albanian interpreter and signed a document making the following declarations:

I understand that, under the laws of the United States, if I sign or submit a statement or document I know is false or has no reasonable basis in fact that pertains to a material fact in any application, affidavit, or other document required by the immigration laws or regulations, I may be fined or imprisoned not more than five years.

I also understand that if I filed my asylum application on or after April 1, 1997, I may be forever barred from receiving any benefits under the Immigration and Nationality Act if I knowingly made a frivolous application for asylum. A frivolous application for asylum is an application that contains deliberately fabricated statements.

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I do solemnly swear/affirm to tell the truth, the whole truth, and nothing but the truth during my interview.

(R. 524.)

On October 28, 2010, the asylum officer denied Jashari's application and referred the case to an Immigration Judge, concluding that Jashari had "failed to demonstrate by clear and convincing evidence that the application was filed within one year after [his] last arrival" in the United States. (R. 525.) The asylum officer noted that Jashari "testified that he arrived at a land border crossing at an unknown point in what he believes was Texas on February 15, 2007" but was "unable to substantiate that claim with any sort of evidence in the form of travel or lodging receipts or any other type of documentary evidence." (Id.) The officer also noted that Jashari's "testimony, country conditions, and applicable U.S. laws or policies do not indicate the presence of any changed circumstances that materially affect [his] asylum eligibility." (Id.)

At some point between the denial of Jashari's asylum application and his appearance before an Immigration Judge for removal proceedings, Jashari's wife filed a Form I-130 petition to adjust status on his behalf. As part of that petition, Jashari submitted a signed Form G-325A with certain biographic information about himself, including dates and places of residence in the U.S.

On January 15, 2015, Jashari appeared for removal proceedings before Immigration Judge Alison Brown (IJ), represented by Adem Vllasi, a new attorney whom Jashari appears to have retained after being dissatisfied with his prior counsel. At the hearing, Jashari withdrew his pending application. Before allowing him to do so, the IJ informed Jashari that the application was "the only form of relief he's filed with this court in terms of defense against being removed" and that any withdrawal would be with prejudice, "meaning you can't go back to that

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application." (R. 130-31.) The IJ stressed that the application sought to be withdrawn was Jashari's "only application for relief" and was the "only defense against being deported I have in your file." (R. 131-32.) Jashari acknowledged that he understood and still wanted to withdraw the application.

The IJ then addressed Jashari's counsel and noted that she was "not clear . . . what [Jashari] is requesting at this point." (R. 132.) Jashari's counsel responded that there "are two alternative forms of relief here available." (Id.) According to counsel, the first of those alternatives was "the fee in for the 485," presumably a reference to Form I-485, the vehicle by which a spouse of a U.S. citizen may apply for lawful permanent residency. (Id.) The second alternative, according to counsel, was to request "a continuance because the respondent is eligible under DAPA"—Deferred Action for Parents of Americans and Lawful Permanent Residents, an executive action deferring removal of qualified immigrants—on the basis of Jashari's children with U.S. citizenship. (Id.) Jashari's counsel then requested a continuance, but the IJ denied that request.

The court then allowed Jashari to testify in opposition to his removal, which was the original purpose of the hearing. Contrary to the information contained on his I-589, Jashari testified that he entered the United States on either September 15 or 16, 2006, apparently accompanied by his wife. Jashari testified that he arrived by airplane in New York and was using a "travel document" in the name of "Burim Pilana," a person with refugee status that Jashari had met in Kosovo. (R. 141.) All of the information on the travel document belonged to Burim Pilana, but the document bore Jashari's picture. Jashari testified that he was briefly questioned by immigration and then received a Form I-94, which is a standard "Arrival/Departure Record." Jashari testified that he destroyed the I-94 and Burim Pilana's

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travel documents after entering the country, explaining that he "was a little scared to keep the documents that did not belong to me." (R. 143.)

The DHS attorney then cross-examined Jashari, beginning by asking whether he wanted to retract any of his answers. When Jasahari responded that he did not wish to retract any of his testimony, the DHS attorney questioned Jashari about the inconsistency between his testimony and the date of entry provided in connection with his I-589 application. When asked why he gave false information to the asylum officer, Jashari said that he "did not speak the language," but also conceded that he had access to an Albanian interpreter at all relevant times. (R. 154-56.) Jashari then testified that Svetlana Schreiber, his attorney, told him to lie about his date of entry "because you cannot stay longer than one year without documents in the United States," apparently in recognition of the requirement that an asylum applicant file his application within one year of entry. (R. 169.) The IJ asked whether Jashari's wife "knew how and when [he] entered the United States." (Id.) Jashari responded that his wife knew the details of his entry "because I have discussed with her when I came here" and that he met his wife in the United States two days after arriving, apparently contradicting his earlier testimony that he and his wife arrived together. (R. 169-71.) The IJ then asked why Jashari's wife was not at the hearing to testify on his behalf, and Jashari responded that his wife had to care for their daughter.

The DHS attorney questioned Jashari about the Form G-325A submitted in connection with the petition filed by Jashari's wife. In relevant part, the Form G-325A indicated that Jashari had lived at an address in Ohio from June 2006 until April 2011, which was inconsistent both with his testimony that he arrived in September 2006 and with his initial statement that he had arrived in February 2007. Jashari was unable to provide a coherent explanation for this discrepancy, responding only that he could not "recall the dates." (R. 161.)

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At the close of the hearing, the government asked the court to find that Jashari had filed a frivolous asylum application. Jashari's attorney requested an additional hearing at which Jashari's wife could testify regarding "his time and manner of entry." (R. 173.) The IJ denied the request to allow Jashari's wife to testify, noting that the hearing had "been set for three years, so I'm not continuing it to put on further evidence on time, place and manner of entry." (R. 174.) The IJ also noted that "time and manner of entry becomes immaterial if he's ineligible to adjust because he's filed a frivolous asylum application." (R. 173.) On February 12, 2015, the IJ issued a written Order and Memorandum finding both...

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