Kalilu v. Mukasey

• Decision Date: 14 February 2008
• Docket Number: No. 06-75425.,06-75425.
• Parties: Abraham F. KALILU, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 777

Abraham F. KALILU, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-75425.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 3, 2007.

Filed February 14, 2008.

Socheat Chea, Esq., Duluth, GA, for the petitioner.

Peter D. Keisler, Esq., Linda S. Wendtland, Esq., Holly Smith, Esq., Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A98-132-223.

Before: D.W. NELSON, STEPHEN REINHARDT, and CARLOS T. BEA, Circuit Judges.

PER CURIAM:

Abraham Kalilu ("Kalilu"), a twenty-seven-year-old native and citizen of Liberia, seeks review of the Board of Immigration Appeals' ("BIA") adverse decision determining that he filed a frivolous asylum application, denying his claims for asylum and withholding of removal, denying his request for voluntary departure, and denying his motion to reopen. Petitioner raises two principal challenges to the BIA's decision.¹ First, he argues that the BIA's frivolousness determination cannot be sustained because he was not afforded the required procedural safeguards, including notice and an opportunity to respond. Second, he argues that the MA abused its discretion in denying his motion to reopen so that he could have an opportunity to pursue adjustment of status on the basis of his marriage to a United States citizen. We have jurisdiction over both of these claims pursuant to 8 U.S.C. § 1252, and we grant the petition for review.

A.

A determination that an applicant filed a frivolous asylum application renders the applicant permanently ineligible for immigration relief. 8 U.S.C. § 1158(d)(6). Petitioner contends that the BIA erred in affirming the IJ's frivolous asylum application determination in his case. On April 25, 2007, the BIA provided guidance for when an asylum application may be found frivolous in accordance with the statute and governing regulation. See In re Y____L____, 24 I. & N. Dec. 151, 155 (BIA 2007). Since these guidelines were issued five months after the BIA considered Petitioner's appeal, we grant the petition in part and remand so that the BIA may apply the standards set forth in In re Y-L- to Petitioner's case in the first instance.²

B.

Petitioner also argues that the BIA abused its discretion in denying his motion to reopen. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004) (reviewing denial of motion to reopen for abuse of discretion). The BIA held that Petitioner's motion to reopen "must be denied" because a newly-enacted regulation clarified that, as an arriving alien, Petitioner "must pursue any application for adjustment of status with the United States Citizenship and Immigration Services (USCIS) independent of [] removal proceedings." See Eligibility of Arriving Aliens in Removal Proceedings to Apply for Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of Status, 71 Fed.Reg. 27585-592 (May 12, 2006) (codified at 8 C.F.R. §§ 1.1, 245.1, 245.2, 1001.1, 1245.1, 1245.2) (hereinafter "Interim Rule"). We agree that the BIA's denial of Petitioner's motion to reopen solely on jurisdictional grounds constitutes an abuse of discretion.³

The Interim Rule upon which the BIA relied `in denying Petitioner's motion to reopen was passed in response to the decisions of four Courts of Appeal, including our own, holding that the Attorney General must provide an opportunity for arriving aliens in removal proceedings to apply for adjustment on the basis of a valid immigrant visa petition. See Succar v. Ashcroft, 394 F.3d 8, 9 (1st Cir.2005); Zheng v. Gonzales, 422 F.3d 98, 119 (3d Cir.2005); Bona v. Gonzales, 425 F.3d 663, 670-71 (9th Cir.2005); Scheerer v. U.S. Attorney Gen., 445 F.3d 1311, 1318 (11th Cir.2006). The opportunity that the Interim Rule affords for an arriving alien in removal proceedings to establish his eligibility for adjustment based on a bona fide marriage is rendered worthless where the BIA, as it purports to do in the present case, denies a motion to reopen (or continue) that is sought in order to provide time for USCIS to adjudicate a pending application. Without a reopening or a continuance, an alien is subject to a final order of removal, despite the fact that he may have a prima facie valid 1-130 and adjustment application pending before USCIS. If an alien is removed, he is no longer eligible for adjustment of status. See 8 U.S.C. § 1182(a)(9)(A)(ii).

The BIA's denial of Petitioner's motion to reopen' on jurisdictional grounds is also contrary to the Board's general policy of favorably exercising its discretion to grant motions to reopen on the basis of an unadjudicated 1-130 petition. See In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-57 (BIA 2002) (en banc); Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA 1978), modified on other grounds by Matter of Arthur, 20 I. & N. Dec. 475 (BIA 1992) (providing that "discretion should, as a general rule, be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of a deportation hearing or upon a motion to reopen.").

We therefore hold that the BIA abused its discretion in denying Petitioner's motion to reopen and remand for an exercise of the agency's discretion that takes into consideration the factors set forth in Velarde-Pacheco, 23 I. & N. Dec. at 256.⁴

C.

For the reasons set forth above, we DISMISS the petition insofar as it seeks review of Petitioner's claim to asylum and request for voluntary departure over. which we lack jurisdiction, DENY the petition with respect to the agency's denial of withholding of removal, and GRANT the petition and REMAND for the BIA to reconsider its frivolousness determination in light of In re Y-L- and for a renewed exercise of the agency's discretion with respect to Petitioner's motion to reopen.⁵

DISMISSED in part, DENIED in part, GRANTED and REMANDED in part.

1. Petitioner raises three additional challenges. We lack jurisdiction over his claim that the BIA erred in denying his request for voluntary departure. See 8 U.S.C. § 1229c(f); Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003). We also lack jurisdiction over a claim concerning the merits of Petitioner's asylum application because he did not challenge its denial before the BIA. See 8 U.S.C. § 1252(d)(1); Vargas v. U.S. Department of Immigration and Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987). Finally, substantial evidence supports the BIA's adverse credibility determination. See Chen v. Ashcroft, 362 F.3d 611, 617 (9th Cir.2004). In the absence of credible testimony, Petitioner failed to meet the high burden of proof required to establish eligibility for withholding of removal. See Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999).

2. At oral argument, Petitioner's counsel, relying on a recent Third Circuit decision, argued that the BIA erred as a matter of law in finding that Petitioner filed a frivolous asylum application where his application was denied as untimely. See, e.g., Luciana v. Attorney Gen., 502 F.3d 273, 280 (3d Cir.2007). Luciana is distinguishable `from the present case. In that case, the. BIA's frivolousness determination was based on the petitioner's submission of an asylum application that contained a false story of her alleged persecution in Indonesia. Luciana, 502 F.3d at 280 n. 6. The Third Circuit held that because the petitioner was statutorily time-barred from filing her asylum application, the false story "was totally incapable of influencing the decision-makers, and therefore it was not material." Id. at 280. By contrast, in the present case, Petitioner's falsehood (an inaccurate date of entry) went to...