Mahesh Sital v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 3, 2022
• Docket: 21-70033
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 3 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MAHESH BHAI SITAL, No. 21-70033

Petitioner, Agency No. A093-446-509

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

Respondent.

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

Submitted February 16, 2022** Pasadena, California

Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,*** District Judge.

Mahesh Bhai Sital, a native and citizen of Fiji, petitions this Court for

review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his

* 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 Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation. appeal from the immigration judge’s (“IJ”) decision finding that he filed a

frivolous asylum application and concluding that he was barred from immigration

relief. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

Because the parties are familiar with the history of the case, we need not recount it

here.

Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872

(B.I.A. 1994), in its decision and does not express disagreement with any part of

the IJ’s decision, the BIA adopts the IJ’s decision in its entirety. Abebe v.

Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). Where the BIA cites

Burbano and adds its own reasoning, this Court reviews both the IJ’s and the

BIA’s decisions. Aguilar Fermin v. Barr, 958 F.3d 887, 891 (9th Cir. 2020).

“An [asylum] application is frivolous if . . . [a]ny of the material elements in

the asylum application is deliberately fabricated[.]” 8 C.F.R. § 1208.20(a)(1). “In

order to sustain a finding of frivolousness, (1) ‘an asylum applicant must have

notice of the consequences of filing a frivolous application;’ (2) ‘the IJ or Board

must make specific findings that the applicant knowingly filed a frivolous

application;’ (3) ‘those findings must be supported by a preponderance of the

evidence;’ and (4) ‘the applicant must be given sufficient opportunity to account

for any discrepancies or implausibilities in his application.’” Fernandes v. Holder,

619 F.3d 1069, 1076 (9th Cir. 2010) (quoting Ahir v. Mukasey, 527 F.3d 912, 917

2 (9th Cir. 2008)). “A ‘determination that an applicant knowingly made a frivolous

application for asylum’ is reviewed de novo ‘for compliance with [the] procedural

framework outlined by the BIA.’” Kulakchyan v. Holder, 730 F.3d 993, 995 (9th

Cir. 2013) (per curiam) (quoting Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir.

2010)). “‘Whether the IJ properly applied the regulatory framework is a question

of law,’ . . . and therefore is reviewed de novo.” Id. (quoting Khadka, 618 F.3d at

1002). “Administrative findings of fact, meanwhile, ‘are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.’” Id.

(quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)).

1. The record supports the IJ’s finding that Sital received notice of the

consequences of filing a frivolous asylum application. Although Sital testified that

the written warning on the asylum application was not translated for him, the IJ

was “entitled to weigh conflicting evidence” and to give greater weight to the

documentary evidence contradicting Sital’s testimony, including signed oaths and

certifications that his asylum application and asylum interview were translated into

his native language. Singh v. Holder, 753 F.3d 826, 835–36 (9th Cir. 2014). To

the extent Sital seeks to assert a claim that he did not receive required notice that

he had the right to counsel, this Court lacks jurisdiction to consider this claim

because it was not raised before the BIA. Ahir, 527 F.3d at 917.

2. Sital argues that the IJ failed to make the required finding that he

3 knowingly filed a frivolous asylum application, but he did not raise this issue

before the BIA. Accordingly, we lack jurisdiction to consider it. Id. Sital

alternatively argues that the record compels the conclusion that he did not intend to

file a frivolous asylum application. We disagree. Although he testified that he

believed he was applying for a work permit, and his non-attorney representatives

instead applied for asylum and concocted the false elements of his claim, including

the false name of “Mahesh Dahyabhai” and his claim that he was from Pakistan, he

admitted to perpetuating those falsehoods in his interview with an asylum officer.

The IJ’s detailed findings describing Sital’s participation in the asylum application

process and ultimate finding that he “deliberately fabricated his asylum

application” are amply supported by the record.

3. The IJ’s findings are supported by a preponderance of the evidence.

Sital repeatedly admitted that he knew his asylum application contained a false

name and false information that he was from Pakistan and that he reaffirmed those

lies in his asylum interview. His argument that those false statements were not

material to the asylum application is meritless. An applicant for asylum must have

been persecuted or have a well-founded fear of persecution in “any country in

which such person last habitually resided” and be unable or unwilling to return to

that country, 8 U.S.C. §§ 1101(42), 1158(b)(1)(B)(i), and Sital falsely claimed to

be from Pakistan rather than Fiji. His admitted falsehoods satisfy the required

4 preponderance of the evidence standard for the IJ’s finding that he deliberately

fabricated a material element of his asylum claim and therefore knowingly filed a

frivolous asylum application. See Khadka, 618 F.3d at 1002.

4. Sital was given an adequate opportunity to account for any

discrepancies or implausibilities in his application. We lack jurisdiction to

consider his claims that the IJ prejudged his case or reduced his opportunity to

explain to a formality because he did not raise those claims before the BIA. Ahir,

527 F.3d at 917. The IJ provided Sital numerous briefing opportunities and held a

hearing at which Sital testified before issuing a decision. The IJ’s decision

extensively discussed the documentary and testimonial evidence, expressly

considered his assertions that he did not receive proper translation and that he was

not aware that he was filing an asylum application, and appropriately weighed

these explanations against Sital’s testimony that he knowingly lied during his

asylum interview and the other evidence in the record.

PETITION DENIED.