Hakob Chilingaryan v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 14, 2020
• Docket: 17-71726
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 14 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAKOB CHILINGARYAN, AKA Hakob No. 17-71726 Arshalouysi Chilingaryan, Agency No. A075-758-457 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

HAKOB CHILINGARYAN, AKA Edgar No. 18-70227 Babaian, Agency No. A075-758-457 Petitioner,

v.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 3, 2020**

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Pasadena, California

Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.

Hakob Chilingaryan, a native and citizen of Armenia, petitions for review of

the Board of Immigration Appeals’s (the “Board’s”) May 15, 2017 ruling that he

filed a frivolous asylum application and the Board’s January 17, 2018 order

denying his motion to reopen and remand. We review for substantial evidence the

agency’s factual findings and review de novo questions of law. Kulakchyan v.

Holder, 730 F.3d 993, 995 (9th Cir. 2013). Where, as here, the Board cites Matter

of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and provides its own review of the

evidence and the law, we review both the Immigration Judge’s (the “IJ’s”) and the

Board’s decision. See Ali v. Holder, 637 F.3d 1025, 1028–29 (9th Cir. 2011). We

have jurisdiction under 8 U.S.C. § 1252 and deny the petitions.

1. Chilingaryan conceded that he knowingly filed a false claim for

asylum, and substantial evidence supports the agency’s determination that

Chilingaryan received adequate notice of the consequences of filing a frivolous

application and thus knowingly filed a frivolous application for asylum. See 8

U.S.C. § 1158(d)(4)(A), (6). The record shows that in April 2006 Chilingaryan

signed his asylum application directly beneath a warning which advises that

“[a]pplicants determined to have knowingly made a frivolous application for

asylum will be permanently ineligible for any benefits under the Immigration and

2 Nationality Act”; the preparer of Chilingaryan’s application certified that the

application was read to Chilingaryan in “his . . . native language or a language he

. . . understands”; at his November 2009 asylum interview, Chilingaryan signed the

“Record of Applicant and Interpreter Oaths During an Interview,” swearing that he

was advised of the consequences of filing a frivolous application by his interview

interpreter; his interview interpreter signed the same document certifying that he

was qualified to act as an interpreter, had read the document to Chilingaryan, and

that Chilingaryan stated he understood him; and at his May 2016 removal hearing

Chilingaryan admitted both that he signed the “Record of Applicant” document

and that he did not inform his interpreter that he misunderstood the document’s

translation. See Kulakchyan, 730 F.3d at 995; Cheema v. Holder, 693 F.3d 1045,

1049–50 (9th Cir. 2012) (holding that the written warning on the asylum

application adequately notifies the applicant of the consequences of filing a

frivolous application). The Board and the IJ did not err in crediting the

declarations of two different interpreters stating that they translated the written

warnings for Chilingaryan over Chilingaryan’s uncorroborated testimony that they

did not, given his admission that he sought asylum using a false

identity. Kulakchyan, 730 F.3d at 995; see also Singh v. Holder, 753 F.3d 826,

835–37 (9th Cir. 2014) (holding that the agency may weigh conflicting evidence

even when there is no adverse credibility finding).

3 2. The Board did not abuse its discretion by denying Chilingaryan’s

motion to reopen. Even assuming his former counsel was deficient, Chilingaryan

cannot demonstrate prejudice. As noted above, Chilingaryan had notice of the

consequences of filing a frivolous application and the agency’s determination that

it lacked jurisdiction to adjudicate his 2006 asylum application did not affect the

materiality of his misrepresentations. An application may be found frivolous even

when it has become moot. See, e.g., Kulakchyan, 730 F.3d at 996 (“We therefore

join several of our sister circuits in holding that . . . a frivolousness finding [may

be] based on a withdrawn application.”). Furthermore, because Chilingaryan

knowingly filed a frivolous application for asylum and substantial evidence

supports the agency’s determination that he received adequate notice of the

consequences of doing so, he is ineligible for adjustment of status.

PETITIONS DENIED.