Pipul v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: June 26, 2018
• Docket: 17-294
• Status: Unpublished

Opinion

17-294 Pipul v. Sessions BIA Vomacka, IJ A079 258 939 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of June, two thousand eighteen.

PRESENT: JON O. NEWMAN, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. _____________________________________

MOHAMMED UZZAL PIPUL, AKA MOHAMMED MAHIDUR RAHMAN, Petitioner,

v. 17-294 NAC JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Amy Nussbaum Gell, Gell & Gell, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Emily Anne Radford, Assistant Director; David J. Schor, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner, Mohammed Mahidur Rahman, a native and citizen

of Bangladesh, using the name Mohammed Uzzal Pipul, seeks

review of a January 11, 2017, decision of the BIA affirming

an April 19, 2016, decision of an Immigration Judge (“IJ”)

ordering removal and concluding that he was ineligible to

adjust status based on his marriage to a United States citizen

because he had previously filed a frivolous asylum

application. In re Mohammed Uzzal Pipul, a.k.a. Mohammed

Mahidur Rahman, No. A 079 258 939 (B.I.A. Jan. 11, 2017),

aff’g No. A079 258 939 (Immig. Ct. N.Y. City Apr. 19, 2016).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case, which are included only

as necessary to explain our decision to deny the petition for

review.

2 Because the petitioner’s true name is Mohammed Mahidur

Rahman, we refer to him as Rahman. In 1998, Rahman applied

for asylum under his true identity.1 The application was

denied, and in 1999, he was ordered removed from the United

States. In 2001, Rahman filed a second asylum application

using a false name (Pipul) and a false birth date. The 2001

application reflected that he had not previously filed for

asylum. This application was granted, and Rahman became a

lawful permanent resident under the name Pipul. He was

placed in removal proceedings when the agency discovered his

misrepresentation. The agency concluded that Rahman’s second

application was frivolous, and thus bars him from adjusting

to lawful permanent resident status based on his marriage.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. Niang v.

Holder, 762 F.3d 251, 253 (2d Cir. 2014). We review the

agency’s factual findings for substantial evidence and its

1 Rahman listed his name as Mohammed Mahidur Rahman on his Form I- 495, Application to Register Permanent Residence or Adjust Status, CAR 210, 215, and his former attorney, Zlata Berman, informed the IJ that his “true and correct name is Mohammed Mahedor [sic] Rahman” and that Pipul is a nickname, CAR 73. It is not clear why his current attorney calls him “Mr. Pipul.” Br. for Petitioner 2. 3 legal conclusions de novo. Id.

“A person who makes an application for asylum determined

to be ‘frivolous,’ or deliberately and materially false, is

subject to a grave penalty: permanent ineligibility for most

forms of relief under the immigration laws.” Mei Juan Zheng

v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see also

8 U.S.C. § 1158(d)(6). Before being subject to this

permanent bar, Rahman was entitled to procedural safeguards:

“(1) notice . . . of the consequences of filing a frivolous

application; (2) a specific finding . . . that [he] knowingly

filed a frivolous application; (3) sufficient evidence in the

record to support the finding that a material element of the

asylum application was deliberately fabricated; and (4) . .

. sufficient opportunity to account for any discrepancies or

implausible aspects of the claim.” In re Y-L-, 24 I. & N.

Dec. 151, 155 (B.I.A. 2007). The IJ’s frivolousness finding

must be supported by a preponderance of the evidence and must

take into account any “plausible explanations” that are

offered for the discrepancies or fabrications. Id. at 157.

As discussed below, all four the requirements were met.

4 The first requirement was met because the 2001

application form that Rahman signed contained a written

warning of the consequences of filing a frivolous

application. That written warning is sufficient. Niang,

762 F.3d at 254-55.

The IJ and BIA met the second requirement by explicitly

finding that Rahman deliberately filed a frivolous asylum

application. Rahman argues that the use of a false name or

other false identity information is not always material, and

that the agency did not prove that his fabrication was knowing

and deliberate. These arguments are defeated by Rahman’s

concession that he used the false information to conceal his

prior asylum application and removal order. Had Rahman used

his real identity, he would have been required to file a

motion to reopen and would have been eligible for asylum only

if he could establish a material change in conditions in

Bangladesh. See 8 U.S.C. §§ 1158(a)(2)(C),

1229a(c)(7)(C)(ii); Yuen Jin v. Mukasey, 538 F.3d 143, 156

(2d Cir. 2008).

The third requirement is met because the record contains

adequate evidence of Rahman’s fabrications. Although the 5 written statement accompanying his 2001 application is not in

the record, the fabrications regarding his name, birth date,

and prior application are on the form itself. Moreover, to

the extent that the IJ and BIA relied on the dates of the

alleged persecution as reflected in the asylum officer’s

written summary of Rahman’s 2001 claim—which were

contradicted by Rahman’s earlier entry into the United

States—Rahman does not challenge the reliability of the

summary.

Last, Rahman had sufficient opportunity to explain his

use of the false information, but he never filed an affidavit

with the IJ or asked to testify. Even now, Rahman’s brief

offers no alternative explanation for his use of false

identity information. Rahman’s due process argument fails

for this reason: because he offers no explanation, he cannot

show that any lack of opportunity to explain caused prejudice.

See Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.

2008) (“Parties claiming denial of due process in immigration

cases must, in order to prevail, allege some cognizable

prejudice fairly attributable to the challenged process.”

(internal quotation marks omitted)). 6 In sum, the agency’s frivolousness finding is supported

by a preponderance of the evidence and the agency complied

with the required procedural protections.

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court