Yousif v. Lynch

Decision Date07 August 2015
Docket NumberNo. 14–3507.,14–3507.
Citation796 F.3d 622
PartiesWisam A. YOUSIF, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF:Marshal E. Hyman, Russell Reid Abrutyn, Marshal E. Hyman & Assoc., PC, Troy, Michigan, for Petitioner.

Leslie McKay, United States Department of Justice, Washington, D.C., for Respondent.

Before: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Petitioner Wisam Yousif is a native and citizen of Iraq and a Chaldean Christian. After entering the United States, Yousif filed an application for asylum and withholding of removal in May 2007. The immigration judge (“IJ”) adjudicated the claims four years later, in December 2011. By that time, respondent attorney general conceded that conditions in Iraq for Chaldean Christians were so turbulent that Yousif was entitled to withholding of removal because there was a clear probability that he would be persecuted based on his religion if he was returned to Iraq. The IJ agreed and granted Yousif withholding of removal.

However, the IJ denied Yousif asylum, ruling that Yousif had filed a “frivolous” asylum application, see 8 U.S.C. § 1158(d)(6), by deliberately fabricating one of its “material elements.” 8 C.F.R. § 1208.20. Specifically, the IJ found that Yousif had falsely claimed in his application that he had experienced past incidents of persecution. Thus, despite the fact that the IJ granted Yousif withholding of removal based on his status as a Chaldean Christian, the IJ denied Yousif's asylum application as frivolous. The Board of Immigration Appeals (the “Board”) affirmed the IJ's ruling.

Yousif petitions for review of the denial of his asylum claim. Observing that generally the burden of proof is more onerous in obtaining withholding of removal than asylum, Yousif asserts that his misrepresentations about his past experiences were immaterial to his asylum application because he would have been eligible for asylum based on his status alone as a Chaldean Christian, regardless of whether he personally had been persecuted. Because the IJ did not determine whether, at the time that Yousif submitted his application, contemporary conditions in Iraq were so dangerous for Chaldean Christians that Yousif would have been eligible for asylum based solely upon his religion, the IJ failed to determine whether Yousif's misrepresentations were material to his application when they were made. We therefore grant the petition, vacate the Board's decision, and remand for further proceedings.

I.

In 2001, Yousif married his first cousin—who lived in the United States and had just become a United States citizen—while she was visiting her extended family in Iraq. On the strength of that marriage, Yousif was admitted to the United States in 2002 as a conditional permanent resident. In June 2004, Yousif and his wife jointly filed a Form I–751 petition to remove the conditions on his status with the United States Citizenship and Immigration Services (“USCIS”). Neither Yousif nor his wife appeared for their subsequently scheduled interview with USCIS, and USCIS denied the joint petition and terminated Yousif's lawful permanent resident status effective in August 2004. Yousif subsequently petitioned USCIS for a waiver of the joint-filing requirement, asserting that he and his wife had divorced after his immigration to the United States. The pertinent statutes and regulations allow for a waiver of the joint-filing requirement if, among other things, the non-citizen would suffer extreme hardship if removed or if the marriage was entered into in good faith and ended through no fault of the non-citizen.See Matter of Munroe, 26 I. & N. Dec. 428, 431 (BIA 2014).1 USCIS, however, determined in July 2010 that Yousif's marriage was not bona fide—given that he and his wife had never commingled assets, shared a residence, or consummated the marriage—and that he had failed to establish that he would suffer extreme hardship if returned to Iraq.

Meanwhile, the Department of Homeland Security (“DHS”) filed in immigration court a notice to appear charging Yousif as removable under 8 U.S.C. § 1227(a)(1)(D)(i), based upon the termination of his conditional permanent resident status. In May 2007, Yousif appeared before the IJ, admitted the factual allegations in the notice to appear, and requested asylum, withholding of removal, and protection under the Convention Against Torture (the “CAT”). Yousif filed a written asylum application in June 2007. In it, he represented that he sought asylum on the basis of his status as a Chaldean Christian. Among other incidents of violence perpetrated in Iraq against his family because of their ethnicity and faith, Yousif's application claimed that [w]hile I was in the Iraqi military in 1996, I was threatened by my superior, Seargant [sic] Nakib Najim, to convert to Islam and follow his orders, or else I would be placed in prison. He hit me with a stick on the face and smacked me with his hands.” Yousif's application also claimed that, in 2004, “Islamic extremists” went to his family's home in Iraq, “tied my father up in the living room, poured gasoline on him and burned him to death.”

Having renewed in immigration court his failed I–751 petition for a waiver of the joint filing requirement, Yousif appeared before the IJ on November 9, 2010. At that hearing, DHS conceded that, as a Chaldean Christian, Yousif was entitled to withholding of removal due to extant country conditions. Regarding Yousif's asylum application, however, the IJ noted that Yousif's application contained some discrepancies and warned Yousif of the consequences of filing a frivolous application for asylum.

The IJ continued the hearing twice, giving Yousif additional opportunities to support his assertions that he and his family had been brutalized because of their faith and ethnicity. Each time, however, Yousif presented evidence that introduced new inconsistencies into his story. His description of his military service, for example, was altered to reflect that his superior officer “wanted to make me his military butler” and threw him in jail “for not following orders,” and that Yousif “was asked numerous times to convert to Islam” but “was not punished” for refusing to do so, instead being “just more or less ignored.” And after the IJ observed that Yousif's father's death certificate ascribed his demise to a kerosene “accident” and had been only partially completed, Yousif submitted a different death certificate bearing a different certificate number and attributing the death to a [f]ire that had taken a[sic] place at the house.” Subsequently, Yousif testified that the death occurred in his father's “shop.”

After reviewing all of the evidence, the IJ issued an oral decision in December 2011 in which he found that Yousif had lied about several items material to his application and had therefore filed a frivolous application. Specifically, after exhaustively recounting Yousif's conflicting testimony and documentary evidence, the IJ concluded that Yousif's story about his military service had been “made up out of whole cloth” and that it was material to Yousif's asylum application because Yousif “obviously thought if he put this in there the chance of him getting asylum would be greatly increased.” The IJ also found that “there is no credible evidence that [Yousif's] father's demise was anything but an accident,” and concluded that Yousif's assertion that his father had been killed by terrorists was “also made [up] out of ... nothing.” In the alternative, the IJ also concluded that Yousif had not demonstrated that his marriage to his cousin was anything more than a sham, was not entitled to a waiver of the joint filing requirement based on extreme hardship, and would not merit asylum as a matter of discretion, even if he had not filed a frivolous application.

Nevertheless, because DHS conceded that Yousif's status as a Chaldean Christian entitled him to withholding of removal, the IJ granted Yousif's application for withholding of removal, notwithstanding the denial of his application for asylum. The IJ noted that in November 2010 DHS did not object to withholding of removal because there was “a pattern or practice of persecution against Chaldeans and Christians in Iraq at that particular time” Further, the IJ agreed with the government that its position was “rightly taken ... that the respondent, as a Chaldean Christian, would be more likely than not to be persecuted upon his return to today's Iraq.” The IJ also denied Yousif's I–751 petition for waiver of the joint-filing requirement and denied Yousif's CAT claim as moot.

Yousif appealed the denial of his asylum claim to the Board, arguing that the IJ's decision was not supported by the evidence, and that any misrepresentations he had made were immaterial to his asylum application. However, the Board affirmed the IJ's decision, concluding that a preponderance of the evidence supported the IJ's frivolousness finding, that Yousif's frivolous asylum application barred his eligibility for any of the discretionary relief that he requested, and that Yousif would not be entitled to discretionary relief even if he had not filed a frivolous application. Yousif now petitions for review.

II.

In his petition, Yousif challenges the ruling that he filed a frivolous asylum application. A finding of a frivolous application carries catastrophic consequences: “If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A) [of the consequences of filing a frivolous asylum application], the alien shall be permanently ineligible for any benefits under this chapter.” 8 U.S.C. § 1158(d)(6). In this context, “frivolousness” denotes deliberate fraud, not mere triviality or legal insufficiency. See Matter of Y–L–, 24 I. & N. Dec. 151, 155 n. 1 (BIA 2007). [A]n asylum application is frivolous,”...

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