Kohli v. Gonzales
| Decision Date | 17 January 2007 |
| Docket Number | No. 05-72761.,05-72761. |
| Citation | 473 F.3d 1061 |
| Parties | Shweta KOHLI, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan M. Kaufman of San Francisco, CA, for petitioner Shweta Kohli.
Peter D. Keisler, Assistant Attorney General, John C. Cunningham, and Gregg M. Schwind of Washington, D.C., for respondent Alberto R. Gonzales, Attorney General.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A79-610-568.
Before T.G. NELSON, GOULD, and CALLAHAN, Circuit Judges.
Shweta Kohli, a native of Kuwait and a citizen of India, seeks relief from removal arguing that the proceedings before the Immigration Court should have been terminated because the name and title of the issuing officer were not legible on the Notice to Appear ("NTA"). She also contends that she is entitled to withholding of removal and to relief under the Convention Against Torture ("CAT"). We determine that the alleged defect in the Notice to Appear is not jurisdictional. We also conclude that the Immigration Judge's adverse credibility determination is supported by substantial evidence and that Kohli has not shown that she is entitled to either withholding of removal or relief under the CAT.
Kohli was born in Kuwait on October 13, 1980, of Indian parents and is a citizen of India. Her parents were contract workers in Kuwait and in 1990, during the Gulf War, the family moved back to India. In 1992, her parents returned to Kuwait, but Kohli remained in India with her grandmother to finish her schooling.
Kohli testified that in 1996 while in school she became a member of a human rights association which was interested in human rights and particularly opposed the practices of sati1 and dowry. Kohli attended meetings and made fliers. About five months after she joined the association, she attended a small rally of eight to ten people. The police came and told them to stop and took down their school identification numbers, names and addresses. Kohli and her associates then dispersed.
A month and a half later Kohli attended a bigger rally near a supermarket with about fifteen members of the association. They handed out flyers to about ten women. Again the police came and told them to stop. Their leader said that they were not doing anything wrong. The police, however, put the fifteen participants in their vehicles and took them to the police station. At the police station the participants were kept together in a waiting room and questioned separately. When questioned, Kohli said she joined the association to bring awareness to women about sati and dowry. She testified that the police officer told her that these were cultural practices and should not be changed. Kohli also testified that when she was taken into the room for questioning, "when he took me instead of telling me to sit down he actually took my shoulders and told me to sit down, pushed me down on the chair." Kohli was released after a couple of hours and called her grandmother who then came and picked her up.
Her grandmother was upset, called Kohli's parents in Kuwait, and suggested that they should take Kohli back to Kuwait. Kohli explained that it was a really bad thing for an Indian girl at the age of sixteen to be detained by the police. Her parents talked to her on the phone and told her to come back to Kuwait, but Kohli said she was happy in India.
Some time after this, Kohli and other members of the association were in a park drawing flyers and planning for the next rally. A single police officer approached the group. The group leader explained that they were not doing a rally, just planning for a future rally, and the police officer left.
Kohli testified that the police officer must have called her grandmother because her grandmother told her that if she did not stop going to the meetings, her parents would take her back to Kuwait. A week later Kohli's father came and took her back to Kuwait.
Kohli remained in Kuwait for nine months and then returned to India for a month to put her affairs in order and for a vacation. While in India, Kohli did not attend rallies, but continued to do work for the association. She then returned to Kuwait, stayed a month and a half, and then came to the United States.
Kohli entered the United States in 1997 as a visitor, intending to stay a month, but then decided to remain and attend school. She graduated from high school in 1999. In February 2001, Kohli married a Pakistani citizen who had previously been granted asylum in the United States. Kohli applied for asylum in December 2001. In February 2002, the application was rejected because she had not sought asylum within a year of her arrival in the United States and had not demonstrated that the delay was caused by extraordinary circumstances. Kohli was served with a NTA charging her with being removable for remaining in the United States without authorization.
At her removal hearing, the Immigration Judge ("IJ") determined that Kohli's asylum application was time-barred because it was submitted late and there were no exceptional circumstances to justify the delay. Addressing the merits of her requests for relief, the IJ concluded that Kohli's testimony was not credible and denied her application for asylum, withholding of removal, and relief under the CAT. The IJ further noted, in the alternative, that even if Kohli was credible, the police conduct she encountered did not rise to the level of persecution.
The IJ based his determination on discrepancies between Kohli's declaration, her testimony, and the letter she submitted to verify her membership in the association. The IJ noted that Kohli testified that all of her activities took place in New Dehli, but the letter stated that she joined the association "in Punjab" and that Kohli's declaration stated that "while in Chandigarth" she "took active part in protests against the discriminatory laws of TADA, that is the Indian anti-terrorist act, that was designed to crush political activities from the Punjab." He further noted that Kohli testified that she had only been kept in the police station for a couple of hours, but her declaration stated that she "was kept at the police station over night and physically abused, degraded without committing any crime." Also, while Kohli testified to a single visit to a police station, her declaration stated that she was taken to the police station several times.
In the course of the proceedings before the IJ, Kohli moved to terminate the proceedings because the signature and title of the issuing officer on the Form I-862 NTA were illegible. The IJ denied the motion to terminate noting that (1) neither the statute nor the regulation requires that the title of the issuing officer be included on the NTA, (2) the argument was waived by Kohli's admission to the allegations in the NTA and concession of removability, (3) Kohli had not been prejudiced by not knowing the identity of the issuing officer, and (4) because there was no indication that the NTA was improperly issued, the presumption of regularity attached.
Kohli appealed to the BIA. The BIA agreed with the IJ that Kohli had not demonstrated eligibility for asylum, had failed to establish grounds for granting other forms of relief, and otherwise affirmed the IJ's decision based on the reasons set forth therein, without further elaboration.
Kohli filed a timely petition for review with this court.
Kohli argues that jurisdiction in a removal proceeding vests when a NTA is filed with the Immigration Court. 8 C.F.R. § 1003.14. She contends that the contents of a NTA are carefully prescribed in 8 U.S.C. § 1229(a)(1),2 citing Matter of G-Y-R, 23 I. & N. Dec. 181 (BIA 2001). Kohli asserts that 8 C.F.R. § 299.1 directs that the NTA must use Form I-862, and that the form "requires the signature and title of the issuing immigration officer." Kohli claims that the party asserting jurisdiction has the burden of proving all jurisdictional facts.
She then addresses the four reasons offered by the IJ for denying her motion to terminate proceedings. In response to the IJ's observation that 8 U.S.C. § 1229(a)(1)(B) does not require that the NTA indicate the title of the issuing officer, Kohli asserts:
The defect upon which the motion is based is not the failure to indicate the title of the issuing officer, per se. But rather, since the signature on the NTA is illegible and the name and title of the official are not indicated, the IJ is in no position to determine whether he in fact has jurisdiction.
Second, Kohli denies that she waived the issue, arguing that a challenge to jurisdiction cannot be waived, citing Cardenas-Uriarte v. INS, 227 F.3d 1132 (9th Cir. 2000), and Olivera-Garcia v. INS, 328 F.3d 1083 (9th Cir.2003). Third, Kohli's answer to the IJ's finding of no prejudice is that (a) prejudice is not required where there is a lack of jurisdiction, and (b) she did establish prejudice because the outcome would have been different, e.g., the proceedings would have been terminated. Finally, Kohli argues that the IJ's invocation of the presumption of regularity improperly shifts the burden of establishing jurisdiction from the government to her.
The sufficiency of the NTA is a question of law, which is reviewed de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791 (9th Cir.2003) ().
The process of removal is commenced by giving written notice in person to the alien informing him or her of:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in...
To continue reading
Request your trial
-
Angov v. Lynch
...See Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004) ; see also Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir.2007). “[I]n the absence of clear evidence to the contrary, courts presume that [these individuals] have properly discharged th......
-
Martinez v. Barr
..., 371 F.3d 532, 535 (9th Cir. 2004). "The sufficiency of [an] NTA is a question of law, which is reviewed de novo." Kohli v. Gonzales , 473 F.3d 1061, 1065 (9th Cir. 2007) (citing Lopez-Urenda v. Ashcroft , 345 F.3d 788, 791 (9th Cir. 2003) ).3. DiscussionThe inquiry before us is a narrow o......
-
Angov v. Holder
...See Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 174, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004); see also Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir.2007). “[I]n the absence of clear evidence to the contrary, courts presume that [these individuals] have properly discharged the......
-
Stoll v. U.S. Citizenship & Immigration Servs.
...Courts will apply the presumption of regularity. United States v. Chem. Foundation, Inc., 272 U.S. 1, 14-15 (1926); Kolhi v. Gonzalez, 473 F.3d 1061, 1068 (9th Cir. 2007). Plaintiffs have not provided any evidence, other than the word choice of "tends to suggest," to support that the BIA us......
-
Will the Fda’s 2010 Warfarin Label Changes Finally Provide the Legal Impetus for Warfarin Pharmacogenetic Testing?
...187 Id. at 24-29. 188 Bristol-Myers Squibb Co. (2010), supra note 6, at 26-27. 189 Id. at 27. 190 Id. at 26-27. 191 Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007) (quoting FCC v. Schreiber, 381 U.S. 279, 296 192 Bristol-Myers Squibb Co. (2010), supra note 6, at 24. 193 Id. at 26. 19......