Jing Wang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2022
• Docket: 18-73480
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JING WANG, No. 18-73480

Petitioner, Agency No. A095-403-339

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted May 13, 2022** San Francisco, California

Before: W. FLETCHER and KOH, Circuit Judges, and KANE,*** District Judge.

Jing Wang (“Petitioner”), a native and citizen of China, seeks review of a

decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an

* 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). *** The Honorable Yvette Kane, United States District Judge for the Middle District of Pennsylvania, sitting by designation. immigration judge (“IJ”) of Petitioner’s application for a waiver of inadmissibility

under 8 U.S.C. § 1182(i). Petitioner also seeks review of the BIA’s decision

affirming the IJ’s finding that Petitioner’s March 2002 asylum application was

frivolous. We dismiss the petition in part and deny it in part.

As an initial matter, we lack jurisdiction to review the denial of Petitioner’s

application for a waiver of inadmissibility under 8 U.S.C. § 1182(i). In general, we

lack “jurisdiction to review . . . any judgment regarding the granting of relief under

section . . . 1182(i)” unless the petition for review raises “constitutional claims or

questions of law.” 8 U.S.C. § 1252(a)(2)(B), (D). Petitioner’s only argument

regarding his application for a waiver of inadmissibility is that the IJ did not give

sufficient weight to evidence that Petitioner’s wife would suffer extreme hardship

if Petitioner were removed from the United States. Thus, because this argument

does not raise a constitutional claim or question of law, we lack jurisdiction to

review the agency’s decision regarding Petitioner’s application for a waiver of

inadmissibility. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012)

(“[T]he court cannot reconsider the discretionary, fact-based determination that

petitioners failed to demonstrate the requisite hardship.” (citing Sarmadi v. INS,

121 F.3d 1319, 1322 (9th Cir. 1997))).

We now turn to the agency’s determination that Petitioner knowingly filed a

frivolous asylum application. To determine that a petitioner filed a frivolous

2 asylum application, the agency “must make a specific finding that [the petitioner]

deliberately fabricated a material element of the application.” Ahir v. Mukasey,

527 F.3d 912, 916 (9th Cir. 2008). The agency must also find that the petitioner

had “notice of the consequences of filing a frivolous application.” Id. at 917.

The agency correctly determined that Petitioner fabricated material elements

of his asylum application. A misrepresentation is material if it has a “natural

tendency to influence the decisions of the [agency].” Forbes v. INS, 48 F.3d 439,

442 (9th Cir. 1995) (quoting Kungys v. United States, 485 U.S. 759, 772 (1988)).

Petitioner’s asylum application stated two fabricated bases for relief: (1) the

Chinese government previously forced Petitioner’s wife to have an abortion; and

(2) the Chinese government previously persecuted Petitioner for his membership in

the Falun Gong social group. Petitioner repeated these fabricated bases for relief

during his asylum interview. Petitioner later admitted to the agency, and now

concedes on appeal, that his wife was never forced to have an abortion and that he

is not a member of Falun Gong. Thus, because Petitioner’s misrepresentations

could have caused the agency to grant Petitioner asylum, the agency correctly

determined that these misrepresentations were material. See Tang v. Gonzales, 489

F.3d 987, 990 (9th Cir. 2007) (explaining that “[v]ictims of coercive population

planning policies, including those subjected to forced abortion,” are eligible for

asylum); Zhang v. Ashcroft, 388 F.3d 713, 718 (9th Cir. 2004) (holding that the

3 petitioner was likely to face persecution based on his membership in Falun Gong).

Finally, substantial evidence supports the agency’s finding that Petitioner

received notice of the consequences of filing a frivolous asylum application. When

Petitioner originally submitted the application, Petitioner signed the section that

described the consequences of filing a frivolous application. At both his 2002

asylum interview and his 2006 hearing before the IJ, Petitioner signed the

application to confirm that he understood the contents of the application.

Additionally, at his asylum interview, Petitioner signed a “Record of Applicant’s

Oath During an Interview,” which described the consequences of filing a frivolous

application. On each occasion, third parties attested that the documents had been

explained to Petitioner in his native language. Under our precedent, this evidence

is sufficient to support the agency’s finding that Petitioner had adequate notice.

See Kulakchyan v. Holder, 730 F.3d 993, 995 (9th Cir. 2013) (holding that the

petitioner had adequate notice because her “application-preparer certified that the

application was read to her in her native language, and a separate interpreter

certified that she read the warnings to petitioner with regard to the ‘Record of

Applicant’s Oath During an Interview’”).

PETITION DISMISSED IN PART AND DENIED IN PART.