Ribas v. Mukasey
| Decision Date | 04 November 2008 |
| Docket Number | No. 07-9509.,07-9509. |
| Citation | 545 F.3d 922 |
| Court | U.S. Court of Appeals — Tenth Circuit |
| Parties | Nathanael Lutuima Quaresma RIBAS, Petitioner, v. Michael B. MUKASEY, United States Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent. |
David C. Senger of Perrine, McGivern, Redemann, Reid, Berry & Taylor, P.L.L.C., Tulsa, OK, for Petitioner.
Linda S. Wendtland, Assistant Director, John C. Cunningham, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.
Before TACHA, EBEL, and MURPHY, Circuit Judges.
Petitioner Nathanael Lutuima Quaresma Ribas seeks review of an order of the Board of Immigration Appeals (BIA) upholding an order of the immigration judge (IJ) finding that he filed a frivolous asylum application; denying his application for adjustment of status; and ordering him removed to Angola. Because Mr. Ribas received adequate notice of the consequences of filing a frivolous asylum application, and because his remaining issues have been waived or lack merit, we deny the petition for review.
Mr. Ribas is a citizen of the Republic of Angola. He entered the United States on January 9, 2002, on a non-immigrant student visa. He lost his student status after he failed to pursue studies as planned at the University of Tulsa. The Department of Homeland Security issued him a notice to appear in removal proceedings on July 16, 2002.
On June 12, 2002, before he was placed in removal proceedings, Mr. Ribas filed his first, pro se, asylum application. He claimed he feared persecution from the government if he returned to Angola. He explained that his father had been accused of being an undercover agent of the Union for the Total Liberation of Angola (UNITA). A guerilla leader had accused his father of passing state secrets to UNITA from the father's position within the Angolan defense ministry. Mr. Ribas asserted that his father, mother, brothers and sisters had been arrested, brutalized, and taken to an unknown location based on the guerilla leader's accusations. They were likely still in prison or dead. He stated that the Angolan government had already cancelled his scholarship to study in the United States and would torture him if he were returned to Angola.
The application for asylum form that Mr. Ribas signed warned him that "Applicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act." Id. at 662.1 The asylum officer who reviewed his application found him only partially credible. Accordingly, he referred the case for proceedings before an immigration judge (IJ).
Mr. Ribas was initially scheduled for a hearing before the IJ on October 7, 2002. The IJ held a brief hearing on that date, during which Mr. Ribas appeared pro se and conceded the facts underlying the basis for removal, but stated that he wanted to pursue his asylum application. The IJ warned Mr. Ribas that "should it be determined that any of the information [on the asylum application] has been deliberately fabricated such a finding would result in the permanent bar [on] receiving immigration benefits in the future." Id. at 353.
At this point, Mr. Ribas's removal and asylum proceedings ground to a temporary halt. Angolan citizens, including Mr. Ribas, were granted "temporary protected status" (TPS) that shielded them from removal.
The TPS later expired and proceedings resumed in 2004. Mr. Ribas was scheduled for a hearing before the IJ on April 13 of that year. He appeared pro se at the hearing. He then explained to the IJ that he believed he would be persecuted for religious reasons if returned to Angola:
Your Honor, I came here (Indiscernible), probably because I really cannot (indiscernible), because of my religious status, right now, I can't (Indiscernible.) I'll be persecuted, Your Honor, they don't believe in God. And (indiscernible) I'd be in danger (indiscernible).
The IJ found this position perplexing. He noted that the asylum application Mr. Ribas previously filed had listed membership in a particular social group as the basis for seeking asylum, and said nothing about being persecuted because of his adherence to Christianity.2
The IJ indicated it was a "problem" for Mr. Ribas that he had changed his story concerning the basis for asylum, but suggested that Mr. Ribas might want to file a new asylum application based on religious grounds. Id. at 367. He warned him, however, that he would need documentation to support his asylum claim. He then cautioned him about the consequences if his asylum claim failed:
So, you need to get to work or you're going to be on an airplane flying back to Angola at the expense of the United States Government. Okay? And if you go out that way you can't come back legally for ten years.
Id. at 372 (emphasis added).
At the next significant hearing, on July 16, 2004, Mr. Ribas appeared with an attorney. His attorney stated he was abandoning his former application and wanted to submit a new asylum application. Mr. Ribas signed and submitted a new asylum application form during the hearing.
Mr. Ribas's new asylum application indicated he sought asylum based on religion, membership in a particular social group, and the Convention Against Torture (CAT). In an accompanying brief, he explained that he Id. at 510. He further stated that "[h]is family are members of the government and those in control of the country having the capability of punishing Mr. Ribas and they have the inclination to punish him." Id. at 512.
He explained away his previous asylum application, stating that it was based on information from his cousin who told him his family had been arrested because of his father's undercover activities as an agent for UNITA. His cousin had been mistaken. Mr. Ribas did not withdraw his application immediately after he learned that this information was false, he said, because he had already been given TPS.
His new claim was based on an incident in which
[h]is mother entered the United States without his knowledge in September 2002 and confronted him. She kept him secluded and restricted him for several days, approximately one week, in an apartment with several Angolan men there to try to intimidate him into giving up his religion. His family stopped all financial support from him and if he returns to Angola he will be severely persecuted for his religious beliefs.
During the time he believed that his parents had been arrested by the Angolan government, Mr. Ribas admitted that he never asked his church to conduct a prayer vigil for them. Although such vigils were conducted at the church, he stated he did not get the church involved because he believed his parents' plight was a "personal matter." Id. at 489. He did not call his parents prior to August 2002 when he heard that they were all right, because he was scared. In closing, the government attorney called his story "one of the more incredible stories I've heard in an asylum case" and urged the IJ to make a finding that the application was frivolous. Id. at 497-98.
The IJ determined that Mr. Ribas "wanted to live in the United States rather than in Angola and ... therefore he put together a frivolous asylum application and filed that and when that didn't work, now he has a new story." Id. at 331. As for the second application, "the basic claim is ... that [Mr. Ribas] is afraid of returning to Angola because his mother resides there." Id.
The IJ then made a finding that the first asylum application was frivolous. He found Mr. Ribas's testimony in support of the second application "untruthful" and "preposterous even though his loving fans from church are inclined to give him the benefit of the doubt." Id. He therefore denied asylum, withholding of removal, and CAT relief, and made a finding that Mr. Ribas "has filed a frivolous asylum application and thus should be forever barred from the receipt of any United States immigration benefit." Id. at 333.
Mr. Ribas filed a timely appeal to the BIA. In his brief, he argued (1) he had not been given proper notice of the consequences of filing a frivolous asylum application; (2) the IJ did not give adequate consideration to his second asylum application; and (3) he had demonstrated past persecution and a well-founded fear of future persecution based on his Christian beliefs.
On November 16, 2005, the BIA issued its decision in the form of a one-judge, summary affirmance. The decision simply stated that the Board affirmed, without opinion, the results of the IJ's decision. Mr. Ribas did not seek review of the BIA's decision in this court.
On February 14, 2006, Mr. Ribas filed a timely motion to reopen and remand the case to the IJ, based on newly-acquired eligibility for relief. He provided proof that on January 12, 2005, he had married a United States citizen, Jamila K. Ribas. She filed an Immigrant Petition for Relative (Form I-130) on his behalf on July 20, 2005. He contended he was entitled to an adjustment of status based on this petition that would prevent his removal to Angola.
The Department of Homeland Security (DHS) did not oppose the motion. Accordingly, on March 28, 2006, the BIA remanded to the IJ for further proceedings.
The matter came back before the IJ on May 3, 2006. He found that Mr. Ribas's proof of eligibility for adjustment of status did not overrule the prior finding that he had filed a frivolous asylum application. The BIA had not overturned the finding of frivolousness, which made Mr. Ribas...
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