Kerota v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2023
• Docket: 21-514
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Fars Wade Kerota, No. 21-514

Petitioner, Agency No. A206-911-620

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted March 14, 2023** Pasadena, California

Before: PAEZ, CHRISTEN, MILLER, Circuit Judges.

Petitioner Fars Wade Kerota (“Kerota”) petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing his appeal of an Immigration

Judge’s (“IJ”) decision. The agency 1) found that Kerota’s 2014 asylum

application was frivolous; 2) terminated Kerota’s asylee status; and 3) denied

him protection from removal to the Netherlands. We have jurisdiction under 8

* 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). U.S.C. § 1252. We deny the petition for review.

Kerota challenges the BIA’s finding that he filed a frivolous asylum

application. “Under [the Immigration and Nationality Act] section 208(d)(6),

an alien found to have ‘knowingly made a frivolous application for asylum’

despite receiving notice of the consequences, becomes ‘permanently ineligible

for any benefits’ under the statute.” Ahir v. Mukasey, 527 F.3d 912, 916 (9th

Cir. 2008) (citing 8 U.S.C. § 1158(d)(6)). “An application is frivolous if . . .

[a]ny of [its] material elements . . . is deliberately fabricated, and the [IJ] or the

[BIA] is satisfied that the applicant . . . has had sufficient opportunity to account

for any discrepancies.” 8 C.F.R. § 1208.20 (a)(1). “Whether the IJ properly

applied the regulatory framework is a question of law” that we review de novo,

while administrative findings of fact “are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” Kulakchyan v.

Holder, 730 F.3d 993, 995 (9th Cir. 2013) (citations omitted).

There is no dispute that Kerota fraudulently obtained asylum status in

2014. On his application, he claimed that his name was Fars Wade Kerota, that

he had never used any other names, that he and his family only held citizenship

in Iraq, and that they fled Iraq in August 2014, fearing they would be persecuted

or tortured by ISIS because of their status as Chaldean Christians. But as

United States authorities later discovered, Kerota’s birth name is Feras Yagob

Hermiz. He and his family fled Iraq in December 2003 and resettled in the

Netherlands, where Kerota became a naturalized citizen in 2008. The family

2 21-514 left the Netherlands in 2014 and entered the United States because they were

seeking medical care for Kerota’s eldest daughter.

The sole issue we must decide is whether Kerota received notice of the

consequences of filing a frivolous asylum application. The governing statute, 8

U.S.C. § 1158(d)(4)(A), requires that, “[a]t the time of filing an application for

asylum, the Attorney General shall advise the alien . . . of the consequences . . .

of knowingly filing a frivolous application for asylum.” See also Ahir, 527 F.3d

at 917. Because the agency’s finding that Kerota received notice is a factual

one, we review for substantial evidence. Kulakchyan, 730 F.3d at 995.

Substantial evidence supports the BIA’s finding that Kerota received

notice of the consequences of filing a frivolous asylum application. First,

Kerota received the written warning set forth on the I-589 asylum application

and signed his name in his native language underneath. Standing alone, “the

written advisals on the I-589 asylum application form provide applicants with

adequate notice of the consequences of filing a frivolous asylum application.”

Cheema v. Holder, 693 F.3d 1045, 1050 (9th Cir. 2012). Although Kerota

argues that he did not understand English when he signed the form, and that the

warning was not translated into his native language, the preparer of the

application signed a declaration attesting that “the completed application was

read to [Kerota] in his . . . native language.” Kerota also printed his alias in

English below the warning, and he was assisted by counsel in filing the

application. Based on these facts, the BIA reasonably found that Kerota

3 21-514 received adequate notice. See Cheema, 695 F.3d at 1049.

Kerota argues that he did not receive additional oral or written warnings

about the frivolous filing consequences, while the petitioner in Cheema did.

Cheema, however, did not hold that additional warnings were required. Id. at

1050 (noting that Cheema conceded “that the statute does not otherwise require

notice to be given orally by an IJ or asylum officer”). At his February 2015

removal hearing, Kerota testified that his asylum application and declaration

were truthful and complete. Kerota also admitted at his reopened removal

proceeding in October 2018 that he had known about the consequences of filing

a frivolous application. When asked if he understood that there were penalties

for filing a frivolous application for asylum “at the time when [he] completed

[his] application,” Kerota responded, “Yes.” Kerota’s own testimony and the

record evidence support the BIA’s finding that he received adequate notice

under 8 U.S.C. § 1158(d)(4)(A).

PETITION DENIED.1

1 Kerota also filed a Motion for Stay of Removal pending the resolution of this appeal, which the government opposed. The motion is denied as moot.

4 21-514