Khaytekov v. Garland
| Decision Date | 25 February 2022 |
| Docket Number | No. 19-3149,19-3149 |
| Parties | Takhir Ashirovich KHAYTEKOV, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ON SUPPLEMENTAL BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Karen L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Before: SILER, COLE, and MURPHY, Circuit Judges.
Often described as an immigration "death sentence," a finding that an immigrant "knowingly made a frivolous application for asylum" renders the immigrant "permanently ineligible for any benefits under" our immigration laws. 8 U.S.C. § 1158(d)(6) ; see, e.g. , Yousif v. Lynch , 796 F.3d 622, 627 (6th Cir. 2015). Yet Congress understandably refused to impose this serious penalty on asylum seekers who file frivolous applications unless they receive adequate notice "of the consequences" of doing so. 8 U.S.C. § 1158(d)(4)(A), (d)(6). To fulfill this notice mandate, the government has placed the required warning about filing a frivolous asylum application in the standard application form itself.
Takhir Khaytekov received this written warning, but immigration judges also routinely give another verbal warning in court. The judge in Khaytekov's case did not give this secondary warning, and Khaytekov argues that the failure to do so violated § 1158(d) ’s notice requirement. In an earlier opinion, we opted to reject Khaytekov's claims for relief on narrower grounds that avoided this statutory question. But the Supreme Court has since remanded the case for reconsideration in light of Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 209 L.Ed.2d 433 (2021), and we now must confront it. We see nothing in § 1158(d) ’s text that requires the additional warning that Khaytekov requests. And we agree with every other circuit court that has considered the issue by concluding that the warning in the application form itself satisfies the statute's notice requirement. Because Khaytekov does not dispute that he filed a frivolous asylum application, he is permanently barred from obtaining any immigration "benefits." 8 U.S.C. § 1158(d)(6). So our judgment remains the same after Niz-Chavez : we dismiss Khaytekov's petition for review in part and deny it in part.
Khaytekov, a citizen of Uzbekistan, came to this country in 2001 on a temporary visa. After he overstayed his visa by many years, the government instituted proceedings to remove him. Khaytekov sought asylum. His asylum application alleged that he had been persecuted "by nationalist[s] and fascist[s]" in Uzbekistan because of his religion, nationality, and political opinion. Admin. R. (A.R.) 1313. It also asserted that Khaytekov feared "physical attacks" if he returned to the country. A.R. 1314.
While his removal proceedings were pending, Khaytekov married a U.S. citizen. He thus withdrew his request for asylum and instead applied to adjust his status to lawful permanent resident. This application required him to show that he was "admissible" into the United States. 8 U.S.C. § 1255(a). But immigrants become "inadmissible" (and so ineligible for adjustment of status) if they misrepresent material facts to obtain an immigration benefit. Id. § 1182(a)(6)(C)(i). An immigration judge found Khaytekov inadmissible on this ground because of a litany of lies that he told during his immigration proceedings. The judge noted, among other things, that Khaytekov had filed a "completely fabricated" asylum application. A.R. 390. Khaytekov later admitted that the application contained false information because he had not been persecuted in Uzbekistan and did not fear returning there. He also admitted that he included this false information in the application because he thought it would increase his chances to remain in the United States.
Yet the Attorney General has discretion to waive the inadmissibility of immigrants like Khaytekov who lie in their immigration proceedings if their removal would cause "extreme hardship" to certain relatives in the United States. 8 U.S.C. § 1182(i)(1). Khaytekov requested this waiver. The immigration judge denied it for three reasons. The judge held that Khaytekov had knowingly filed a frivolous asylum application, which rendered him "permanently ineligible" for any benefits under the immigration laws. Id. § 1158(d)(6). The judge next found that Khaytekov's wife would not suffer extreme hardship from his removal. The judge lastly determined that Khaytekov's repeated falsehoods showed that he did not warrant a favorable exercise of the Attorney General's discretionary waiver authority. Ultimately, the judge described Khaytekov as "one of the most remarkably and demonstrably dishonest people with whom this Court has dealt in well over 30 years of experience on the bench." A.R. 392–93.
Khaytekov appealed to the Board of Immigration Appeals. In addition to challenging the immigration judge's opinion, he filed motions to remand based on new precedent and new evidence and a motion for the Board to appoint a three-judge panel. As relevant now, he moved to remand on the ground that a recent Supreme Court decision made him eligible for cancellation of removal. See Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). This relief allows the Attorney General to cancel the removal of immigrants who meet various requirements, including that they have been physically present in the United States for 10 years. 8 U.S.C. § 1229b(b)(1)(A). Under a rule that has come to be called the "stop-time rule," immigrants must satisfy the requirement of 10 years’ physical presence on the date that the government serves them with a "notice to appear" commencing their removal proceedings. Id. § 1229b(d)(1). In Pereira , the Supreme Court held that an invalid notice to appear that does not contain all necessary information (including the date and location of the removal hearing) cannot stop this 10-year clock. See 138 S. Ct. at 2110. The decision thus gave immigrants who receive invalid notices to appear more time to satisfy the 10-year presence requirement because the clock will continue to run until they receive a valid notice to appear. Khaytekov claimed that he received an invalid notice without the required date and location information and thus that he had been in the country for 10 years. He argued that he qualified for cancellation of removal after Pereira .
The Board denied Khaytekov's motions and upheld the immigration judge's decision. Despite Khaytekov's request for a remand to apply for cancellation of removal, it distinguished Pereira on the (mistaken) ground that Khaytekov did not seek that form of relief. It next found that the immigration judge properly held that Khaytekov's frivolous asylum application disqualified him from any benefits under the immigration laws. See 8 U.S.C. § 1158(d)(6). And even if the judge was wrong in that regard, the Board also agreed that Khaytekov did not deserve a discretionary waiver of the ban on adjustment of status that applies to immigrants who lie in their removal proceedings. See id. § 1182(i)(1).
Khaytekov petitioned this court to review the Board's order. We originally dismissed his petition in part and denied it in part. Khaytekov v. Barr , 794 F. App'x 497, 503 (6th Cir. 2019). We held that we lacked jurisdiction to consider the Board's denial of Khaytekov's motion to remand for the consideration of new evidence, and we found that the Board had properly denied his motion to appoint a three-member panel. Id. at 499–501. Although we next recognized that the Board had wrongly distinguished Pereira on the ground that Khaytekov was not seeking cancellation of removal, we found its misstatement harmless because Khaytekov was still ineligible for that relief. Id. at 502. Under our then-existing precedent, the government could trigger the cancellation-of-removal statute's "stop-time rule" by sending a second notice to an immigrant that included the date and location information missing from the first notice. Id. (citing Garcia-Romo v. Barr , 940 F.3d 192, 199–203 (6th Cir. 2019) ). Because Khaytekov had not been in this country for 10 years when he received a second notice, he remained ineligible for cancellation of removal under Garcia-Romo . Id. We lastly declined to consider Khaytekov's argument that he had not filed a frivolous asylum application because he could not obtain any of his requested remedies no matter how we ruled on that more far-reaching issue. Id. at 502–03.
After our decision, the Supreme Court overruled Garcia-Romo in Niz-Chavez . Niz-Chavez held that only a single document could qualify as a "notice to appear" that triggered the "stop-time rule." See 141 S. Ct. at 1480–85. It thus rejected Garcia-Romo ’s holding that the government could trigger that rule by sending multiple notices containing all necessary information. Id. Khaytekov had petitioned the Supreme Court for certiorari on this question. The Court granted his petition, vacated our judgment, and remanded this case for reconsideration in light of Niz-Chavez . See Khaytekov v. Garland , ––– U.S. ––––, 141 S. Ct. 2591, 2592, 209 L.Ed.2d 729 (2021).
As we noted in our last opinion, the Board mistakenly stated that Khaytekov had not sought cancellation of removal because he requested that relief in a motion to remand. Khaytekov , 794 F. App'x at 502. Our prior opinion found this misstatement harmless on the ground that Khaytekov could not satisfy cancellation of removal's physical-presence requirement. As the government concedes, Niz-Chavez rejected this part of our reasoning. Immigration authorities did not send Khaytekov a single document with all of the information that a notice to appear must contain. Under Niz-Chavez , then, he never received a valid "notice to appear" that triggered the stop-time rule, and he had lived in the country for the 10-year...
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