Petition for Writ of Certiorari — Khurana v. Gonzales (No. 05-852)

8

April 2004), cited in Muhanna, 399 F.3d at 588. The

provision permanently bars the alien from receiving any

nonimmigrant or immigrant benefit once it is triggered.

Id. Moreover, the bar “may not be waived under any

circumstances.” Id. The bar covers any benefit under the

INA, including immigrant or nonimmigrant entry. Id.

Given the severity of this penalty, it is a rare finding

with strict procedural requirements. Ser 8 C.FR.

§§ 208.20, 1208.20. The implementing regulations at 8

C.F.R. § 208.20 set forth the criteria an IJ or the BIA must

address before finding an application to be frivolous:

An applicant is subject to the provisions of sec-

tion 208(d)(6) of the Act only if a final order by an

immigration judge or the Board of Immigration

Appeals specifically finds that the alien know-

ingly filed a frivolous asylum application.

For purposes of this section, an asylum applica-

tion is frivolous if any of its material elements is

deliberately fabricated. Such finding shall only be

made if the immigration judge or the Board is

satisfied that the applicant, during the course of

the proceedings, has had sufficient opportunity

to account for any discrepancies or implausible

aspects of the claim.

See 8 C.F.R. § 208.20 (emphasis added); see also 8 C.F.R.

§ 1208.20 (same).

Thus, prior to issuing a frivolous filing finding, the

immigration judge must determine: (1) whether the

asylum applicant knowingly or deliberately misrepre-

sented a fact; (2) whether the fact was material; and (3)

whether the applicant was given sufficient opportunity to

explain the discrepancy or misrepresentation. See id.

9

The Ninth Circuit has never addressed the specific

issue of intentional and deliberate fabrication in any

published case. Its only published case on the issue of

frivolous filing findings, Farah v. Ashcroft, 348 F.3d 1153

(9th Cir. 2003), did not address this aspect of the finding.

Id. (finding that the immigration judge did not give the

petitioner adequate opportunity to explain any discrepan-

cies in his application).

However, four other Circuit Courts of Appeals — the

Third, Fifth, Sixth, and Eleventh Circuits — have each

addressed this precise issue. In Muhanna v. Gonzales, the

Third Circuit considered the frivolous filing finding within

the context of the factfinding required by due process

under the Fifth Amendment. 399 F.3d at 588-89. In Mu-

hanna, the immigration judge made a frivolous filing

finding, based entirely on an inconsistency between the

petitioner Muhanna’s testimony and his original asylum

application regarding a stabbing incident. Jd. at 586. In

reversing the immigration judge’s finding, the Third

Circuit held that: “[T]he inconsistency in his testimony

does not necessarily support a finding that the application

was false.” Id. at 588 (emphasis added).

The Third Circuit specifically distinguished a finding

of frivolousness from an adverse credibility determination:

[U]nder 8 C.F-R. § 208.20 a finding of frivolous-

ness does not flow automatically from an .dverse

credibility determination in any event. Inconsis-

tencies between testimony and an asylum appli-

cation ... do not equate to a frivolousness

finding under § 1158(d)(6), which carries with it

much greater consequences.

10

Id. at 589 (emphasis added). Rather, the Court found that

it was

because of those severe consequences that the

regulation requires more: a finding of deliberate

fabrication of a “material element” of an applica-

tion, plus an opportunity for the alien te account

for the inconsistencies.

Id. (emphasis added).

The Court concluded that “by imposing a frivolous

finding based not on a thorough examination of the appli-

cation but instead on her assessment of the petitioner’s

credibility, and by consequently refusing to allow further

testimony, the IJ violated [Muhanna’s Fifth Amendment

rights to fact finding and argument on one’s own behalf]

and deprived Muhanna of due process.” Jd. Thus, the

Court held that “the frivolousness finding cannot stand”

and remanded the case to the BIA. Id.

Likewise, the Fifth, Sixth, and Eleventh Circuits have

upheld frivolous filing findings in cases in which the

immigration judge clearly found that the petitioner had

lied, changed his or her facts, or fabricated documents so

as to be eligible for asylum. In Efe, the Fifth Circuit Court

of Appeals found that the petitioner Efe filed a frivolous

application for asylum because the petitioner had “gone °

back and forth with the facts and misrepresented his case

several times.” 293 F.3d at 908 (emphasis added). The

immigration judge concluded that Efe had frivolously filed

his asylum application after making a specific finding that

“Efe had knowingly and intentionally made false state-

ments on his asylum application and during his testimony

with the purpose of obtaining asylum.” Jd. at 903 (empha-

sis added).

11

Similarly, the Sixth Circuit upheld a frivolous finding

because the petitioner had submitted a fraudulent docu-

ment. In Selami v. Gonzales, the petitioner submitted a

fraudulent newspaper article to the immigration judge,

which purportedly showed that the petitioner was a

prominent anti-communist activist who was forced to flee

Albania. 423 F.3d at 624. Although the petitioner con-

tended on appeal that he did not have knowledge of the

fraud, the Court found that “in light of the obvious nature

of the forgery, and Selami’s failure to articulate any

explanation to the IJ, Selami’s argument is without merit.”

Id. at 626-27. It therefore upheld the frivolous application

finding. Id.

Finally, in Barreto-Claro, the Eleventh Circuit upheld

a frivolous filing finding on the grounds that the petitioner

had “fabricated his answers in a knowing and deliberate

manner” about the fact that he had lived in Costa Rica for

six months prior to arriving in the United States. 275 F.3d

at 1339 (emphasis added). Ultimately, during his hearing,

Barreto-Claro recanted and admitted his knowledge of the

falsity of his claim. Id.; see also id. (stating that “rather

than showing that his fabrications were neither material

nor knowingly made, Barreto appears to be explaining...

why concededly material fabrications were knowingly

made”) (internal citations omitted).

Notably, in Barreto-Claro, the Eleventh Circuit

distinguished “fraudulent” from “frivolous” applications,

and found that 8 U.S.C. § 1158(d)(6) was meant to address

the former:

Synonyms for frivolous are “carefree, fanciful,

fickle, giddy, flippant, nonchalant.” Roget, Inter-

national Thesaurus (3d ed. 1965). The dictionary

defines frivolous as “insignificant, trivial, silly or

12

gay.” Webster, New International Dictionary (3d

ed.1961). We note perhaps that the statute is im-

properly captioned as “Frivolous Application.” A

more appropriate caption perhaps would be

“Fraudulent Application.” Here we think that the

record very clearly reflects that [Petitioner] was

sincere, albeit fraudulent, in his application. He

was not nonchalant or flip. Neither was it insig-

nificant or trivial to him.

Id. at 1339 n.11 (emphasis added). The Court also repeat-

edly emphasized that the definition of a frivolous applica-

tion in the statute and the regulations involved a knowing

and deliberate fabrication. See id. at 1338-39.

In this case, the Ninth Circuit completely failed to

apply the strict standards of the statute, the regulations,

and the case law of these four other Circuits when it

considered the IJ’s frivolous filing finding. Primarily on

the basis of the discrepancy between Petitioner’s testi-

mony and her passport in regards to the date of her arrest

and assault in 1999, the IJ found that Petitioner was not

credible and had, thus, frivolously filed an asylum applica-

tion in violation of 8 U.S.C. § 1158(d)(6). App. 18. However,

the IJ never held that Petitioner knowingly made a false

representation.

In fact, there is no evidence at all that Petitioner knew

that her testimony regarding the date of her arrest and

detention in 1999 was wrong. Rather, the evidence shows

that Petitioner repeatedly, and in good-faith, referred to an

incorrect date for her detention. In fact, her arrest and

detention occurred a few days later and Petitioner had

merely remembered incorrectly the exact date of her

return to India and, later, her arrest. She did not change

her testimony at any time, did not present any falsified

13.

documents supporting the incorrect date and, in fact,

maintained her belief in that date even when confronted

with her passport. See e.g., A.R. 167, 170, 177; Tr. 101, 104,

111.

Had the Court of Appeals properly applied the statute

and the regulations as the Third, Fifth, Sixth, and Elev-

enth Circuits have done, it would have had to have found

that Petitioner did not warrant a frivolous asylum filing

finding. In this case, the IJ never made a finding that

Petitioner deliberately and intentionally sought to deceive

the Court. Petitioner testified in contradiction to her

passport, but unlike the petitioners in Barreto-Claro and

Efe, Petitioner has testified consistently throughout her

proceedings. In contrast to the petitioner in Barreto-Claro,

she has repeatedly affirmed the veracity of her claim and

has never recanted any part of her application. Moreover,

in contrast to the petitioners in Efe, Barreto-Claro, and

Selami, Petitioner did not present or seek to present any

fraudulent documentation. There is absolutely no evidence

to support a finding that Petitioner knew the dates to be

wrong, only that she was, in fact, wrong about the dates.

Rather, like in Muhanna, Petitioner’s error was

merely that - a mistake that is not indicative of any

deliberate intent to deceive. Like the petitioner in Mu-

hanna, her explanations for her failure to state the correct

date are reasonable and plausible. Also, as in Muhanna,

even if her explanations appear implausible, a negative

credibility determination alone cannot be used as the basis

for a finding that there was a frivolous asylum filing

without evidence of deliberate fabrication.

Had the Ninth Circuit correctly applied the standards

set forth in 8 U.S.C. § 1158(d)(6) and 8 C.F.R. § 208.20,

14

as the Third, Fifth, Sixth, and Eleventh Circuit Courts of

Appeals have held apply, it could not have found that

Petitioner’s asylum application was frivolous. Thus, this

Court must review the decision in this case to ensure that

the Ninth Circuit’s standard for a frivolous filing finding

conforms to the standards set forth in the statute, the

regulations, and the Fifth Amendment, and those of all the

other Circuits that have addressed this issue.

4

4

CONCLUSION

For all of the above-stated reasons, the petition for

writ of certiorari should be granted.

Respectfully submitted,

MARC VAN DER HOUT

Counsel for Petitioner

AVANTIKA SHASTRI

Attorney

December 29, 2005

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT.

GURPREET KHURANA,

No. 04-71225

Petitioner,

Agency No.

Vv. A95-414-664

ALBERTO R. GONZALES,* MEMORANDUM**

Attorney General,

(Filed Jun 08, 2005)

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 12, 2005***

Before: SKOPIL, BOOCHEVER, and LEAVY, Circuit

Judges.

Gurpreet Khurana, a native and citizen of India,

petitions for review of the decision of the Board of Immi-

gration Appeals (BIA) affirming the denial by an immigra-

tion judge (IJ) of her requests for asylum, withholding of

removal, relief under the Convention Against Torture

(CAT), and the IJ’s finding that Khurana filed a frivolous

* Alberto R. Gonzales is substituted for his predecessor, John

Ashcroft, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2).

** This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

*** This panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

App. 2

asylum application. We have jurisdiction pursuant to 8

U.S.C. § 1252. We review for substantial evidence and will

uphold the BIA’s determination unless the evidence

compels a contrary result. Molina-Estrada v. INS, 293

F.3d 1089, 1093 (9th Cir. 2002). We deny the petition.

Substantial evidence supports the adverse credibility

finding. As one material example, there is an inconsistency

between Khurana’s testimony that she was arrested and

raped in India in March 1999, and her passport which

indicated that she was not in India at this time. If one of

the identified grounds underlying a negative credibility

finding is supported by substantial evidence and goes to

the heart of a claim of persecution, we are bound to accept

the negative credibility finding. Li v. Ashcroft, 378 F.3d

959, 964 (9th Cir. 2004). The record does not compel the

conclusion that Khurana’s testimony was credible. See

Singh v. Ashcroft, 367 F.3d 1139, 1143-44 (9th Cir. 2004).

Accordingly, Khurana failed to establish eligibility for

asylum or withholding of removal. See id.

Substantial evidence supports the conclusion that

Khurana is not entitled to relief u ‘er the CAT because

she did not demonstrate that it is more likely than not

that she would be tortured upon return to India if she is

deported. See 8 C.F.R. § 208.16(cX2); Kamalthas v. INS,

251 F.3d 1279, 1282 (9th Cir. 2001).

Substantial evidence supports the IJ’s finding that

Khurana filed a frivolous application contai: ing deliberate

fabrications uncer 8 U.S.C. §1158(d)(6) and 8 C.FR.

§ 208.20, and is thus permanently ineligible for any

immigration benefit. Khurana was given an adequate

opportunity to explain the inconsistencies pointed out by

the IJ before the IJ’s frivolousness finding was made. The

App. 3

BIA reviewed the record and additionally considered

evidence from Khurana’s neurologist regarding Khurana’s

claimed memory loss. Khurana had ample opportunity to

explain the several inconsistencies that led to the finding

of frivolousness. See Farah v. Ashcroft, 348 F.3d 1153, 1158

(9th Cir. 2003). The record does not compel us to reverse

this finding.

PETITION FOR REVIEW DENIED.

App. 4

U.S. Department of Justice

Executive Office for Immigration Review

[SEAL]

Board of Immigration Appeals

Office of the Clerk

5201 Leesburg Pike, Suite 1300

Falls Church, Virginia 22041

Ganjoo, Monica N. Office of the

870 Market Street District Counsel/SF

Suite 340 P.O. Box 26449

San Francisco, CA 94102-0000 San Francisco, CA

94126-6449

Name: KHURANA, GURPREET A95-414-664

Date of this notice: 02/26/2004

Enclosed is a copy of the Board’s decision and order in the

above-referenced case.

Sincerely,

/s/ F.T. Krider

Frank Krider

Acting Chief Clerk

Enclosure

Panel Members:

HOLMES, DAVID B.

App. 5

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A95414664-San Francisco Date: FEB 26 2004

In re: GURPREET KHURANA

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Monica Ganjoo, Esquire

ON BEHALF OF DHS: Peter S. Vincent

Assistant District Counsel

CHARGE:

Notice: Sec. 237(a)(1)(A), I&N Act [8 U.S.C.

§ 1227(a)(1)(A)] — Inadmissible at

time of entry or adjustment of status

under section 212(a)(7)A)G)(D, I&N

Act [8 U.S.C. § 1182(aX(7KAGMD) -

Immigrant ~ no valid immigrant visa

or entry document

APPLICATION: Asylum; withholding of removal; relief

under the Convention Against Torture;

voluntary departure

In a decision dated October 7, 2002, the Immigration

Judge found the respondent subject to removal as charged,

denied her applications for asylum, for withholding of

removal, for relief under Article 3 of the United Nations

Convention Against Torture and Other Forms of Cruel,

Inhuman or Degrading Treatment or Punishment and for

voluntary departure. and ordered her removed. The

App. 6

respondent has appealed from that decision. The appeal

will be dismissed.

The respondent is 33 years old and is a citizen and

native of India who entered the United States in April

2001. She claims that she has been and will be persecuted

in India because she is a Sikh. We find the Immigration

Judge has accurately set forth the facts of the respondent’s

case and we adopt her statement (I.J. Dec. at 1-6). In her

consideration of the respondent’s claim, the Immigration

Judge found that the respondent’s account was not credi-

ble. The respondent challenges this determination on

appeal.

Based upon our review of the record, we find that the

decision of the Immigration Judge is correct and we adopt

and affirm it. Matter of Burbano, 20 I&N Dec. 872, 874

(BIA 1994) (noting that adoption or affirmance of a deci-

sion of an Immigration Judge, in whole or in part, is

“simply a statement that the Board’s conclusions upon

review of the record coincide with those which the Immi-

gration Judge articulated in his or her decision”). The

record reflects that the shortcomings and inconsistencies

cited by the Immigration Judge are present in the record;

that such shortcomings and inconsistencies provide

specific and cogent reasons to conclude that the respon-

dent’s claim is not credible; and that the respondent on

appeal has not provided an adequate explanation for these

discrepancies and shortcomings. On such record, we find

that the Immigration Judge’s determination is correct.

Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998).

In particular, we note the Immigration Judge’s finding

that the respondent’s passport establishes that she was

actually in the United States in March and April 1999

App. 7

when she claimed to have been raped by Indian authori-

ties. We find that this inconsistency cited by the Immigra-

tion Judge is an extremely substantial discrepancy which

goes to the substance of her claim and supports the Immi-

gration Judge’s adverse credibility finding. Akinmade uv.

INS, 196 F.3d 951 (9th Cir. 1999). At her hearing, the

respondent attempted to explain the discrepancy by

asserting that she has been somewhat confused after the

birth of her second child in February 2002 and on appeal

she has submitted a note from her neurologist stating that

she has been treated since March 2002 for postpartum

depression including memory difficulty and difficulty in

concentration. We do not find that such abbreviated

statement is an adequate explanation for the difficulties in

the respondent’s case, especially in the absence of a

complete explanation from the respondent concerning the

inconsistencies in her claim. In this regard, we note that

the respondent’s passport shows that she returned to her

home in India on multiple occasions after the claimed rape

in March-April 1999 (Tr. at 85-87). Under the circum-

stances of this case, it is difficult to reconcile the respon-

dent’s return to India with her claimed fear of persecution.

On the record before us, including these inconsistencies

and incongruities, we are not persuaded that the Immigra-

tion Judge’s adverse credibility finding was in error. The

respondent has not otherwise met her burden of proof.

Accordingly, the appeal will be dismissed.’

* On appeal the respondent has not challenged the Immigration

Judge’s finding that her asylum claim was frivolous and the Immigra-

tion Judge’s denial of voluntary departure. In addition, the respondent

has not meaningfully challenged the Immigration Judge’s finding that

she failed to meet her burden of demonstrating eligibility for protection

under the Convention Against Torture.

App. 8

ORDER: The appeal is dismissed.

/s/ David B. Holmes

FOR THE BOARD

App. 9

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

San Francisco, California

File No.: A 95 414 664 October 7, 2002

In the Matter of )

GURPREET KHURANA) BooGrEDINGS

Respondent )

CHARGE: Section 237(a)(1)(B) of the Immigration

and Nationality Act — alien present in

the United States in violation of law, in

particular overstaying her visitor's

Visa.

APPLICATIONS: Asylum and withholding of removal,

Torture Convention, and voluntary de-

parture.

ON BEHALF OF ON BEHALF

RESPONDENT: OF SERVICE:

Alison Dixon Monica Rahmeyer

615 Sanson Street, 2nd Floor Assistant District Counsel

San Francisco, CA 94111

ORAL DECISION OF THE IMMIGRATION JUDGE

Background

The respondent is a 32-year-old female native and

citizen of India who was admitted to the United States as

a visitor at Newark, New Jersey, on or about April 17,

2001, and authorized to remain in the United States no

longer than May 16, 2001, but who has remained in the

United States past that time without authorization from

App. 10

the Immigration and Naturalization Service (The Service).

The Service has commenced removal proceedings against

the respondent, charging her with being removable pursu-

ant to the above captioned section of the Immigration and

Nationality Act (INA).

The respondent has admitted all the factual allega-

tions contained in the Notice to Appear as amended

(Exhibit 1) and conceded that she is removable as charged.

Because she has declined to designate a country of re-

moval, India has been directed by the Court pursuant to

INA Section 241(B), should such action become necessary.

The respondent has submitted an application for asylum

under INA Section 208. This application is also considered

an application for withholding of removal under both INA

Section 241(bX3) and under the Torture Convention as

well. The respondent has applied for voluntary departure

as well. As required by regulation, respondent has been

advised of the consequences of filing a frivolous application

for asylum in the United States.

The respondent’s claim

The respondent has applied for asylum and withhold-

ing and Torture Convention relief on the basis of her

religion, her political opinion and her membership i: a

particular social group. Her claim is based on events that

she say [sic] go back as far as 1984 and have continued up

until the time of her most recent visit to India before

coming to the United States in April 2001. These incidents

are primarily based on her political activities and her

support of Sikh nationalism.

The respondent has visited the United States many

times. The earliest visit on her asylum application shows

App. 11

an entry at New York, New York on August 6, 1999, but

her passport shows a number of other entries into the

United States. (See Exhibit 9).

The respondent testified that she was born in New

Delhi, India, on February 19, 1970. She testified that she

has been a Sikh since birth. She testified that she has a

university degree in Home Science and Fashion Design in

particular.

Her last entry into the United States was on April 17,

2001, at Newark, New Jersey. She testified that she left

India because she felt that life was not safe there.

The respondent’s first problems according to her

testimony came in 1984 in anti-Sikh riots which swept

India after the killing of Prime Minister Indira Gandhi by

a Sikh. The respondent testified that during this time her

entire family was fleeing and that she was raped by two

men in an alley. She testified that she was 14 years old at

this time.

The respondent testified that she was never politically

active in India. She testified, however, that on March 30,

1999, she participated in a rally organized by the Sikh

Students Federation in honor of people who had suffered

during the 1984 riots. She testified that 2,000 to 3,000

people were present at this rally, which she attended with

a neighbor. She testified that her neighbors were arrested

at this rally and that she was arrested when the police

came to her house that night. She testified that there were

approximately 3-4 officers and that she was taken to the

local police station. She testified that the police hurt her

and called her a traitor. She testified that she was beaten

with a belt, kicked and hit with sticks. She testified that

before she was released two days later she was raped by

App. 12

one of the constables. She testified that a bribe was paid

for her release, but that she did not receive medical

treatment after being released. She testified that this was

because her family felt that girls should not take part in

such matters and that such matters — referring to the rape

— should be kept secret.

The respondent testified that the police came to her

house again on April 13, 1999. She testified that she was

not home and that her family was directed to present her

at the police station. She testified that at that point she

decided to come to the United States for a short time.

The respondent testified that on April 16, 1999, she

left for the United States. She testified that on arriving in

this country she lived with [sic] Indian friend named

Harry Aurora, to whom she is now married. The respon-

dent testified that during the time in the United States,

her Indian employer applied for an L1 Visa for her. She

testified that she got pregnant and that when the company

learned she would be unable to work, it withdrew the

petition on or about April 25, 2000. She testified that her

first child was born on July 3, 2000.

The respondent testified that on August 25, 2000 she

returned to India, because she did not want to live in the

United States illegally. The respondent testified that while

she was in India, she went to another demonstration with

a neighbor. She testified that this was another demonstra-

tion in memory of people who had died in 1984 and that

this demonstration was also sponsored by the Sikh Stu-

dents Federation. She testified that approximately 2,000

persons were present at this demonstration. She testified

that she ran away from the demonstration as soon as she

saw that people were being arrested. The respondent

App. 13

testified that she was afraid of being arrested and that she

knew that the police were looking for her because of her

1999 arrest. She testified that she went home for 15 to 20

days and then went back to New York because her daugh-

ter’s life was in danger. The respondent testified that

according to her parents, the police have come to her home

twice since that time. The respondent testified that in

March 2001, she returned to India for her brother’s wed-

ding. She said that the police came to know that she was

there and arrested her again. She testified that she was

taken to the police station on April 13, 2001, where she

was again beaten. She testified that she was released

when her brother bribed a police officer with 120,000

rupees. The respondent testified that when she was

released they told her that if they found her again they

would kill her and disfigure her so that nobody could

recognize her. She testified that as a result she did not feel

safe.

The respondent was married to Harry Aurora on April

25, 2001. This was 13 days after she testified that she left

India in fear of her life. The application contains pictures

of her wedding. On cross-examination the Government

attorney asked the respondent about her wedding prepa-

rations and respondent was evasive. The Government

attorney pointed out the number of people who appeared

in the photographs and the respondent said that there

were many people there because it was Sunday at the Sikh

temple and a common meal is ordinarily served. On

questioning by the Government attorney, the respondent

said first that there were only a few people from her side.

Then she said there was nobody from her aide. Then she

said there were five or six people from her side, whom she

App. 14

named as a friend that she stayed with previously, the

friend’s brother, the brother’s wife anc their two children.

Credibility

In assessing the credibility of the respondent, I have

taken into account the rationality, internal consistency

and inherent persuasiveness of her testimony. The Board

of Immigration Appeals has stated that in reviewing IJ

credibility findings it looks to the record to see if the

discrepancies and omissions described by the IJ are

actually present, whether they are material and whether

the respondent has provided a convincing explanation. In

re A-S, 21 IEN Dec. 1106 (BIA 1998).

In the present case the Court finds that respondent’s

application is not credible: This finding is based on two

matters which the Court believes are fatal to the respon-

dent’s application.

The respondent testified first that she was arrested on

March 30, 1999 and not released until April 2, 1999. She

testified that during this time she was abused in various

ways, the most serious of which was a rape. On examina-

tion by the Government, however, the fact emerges from

the multiple stamps in respondent’s passport that she was

admitted to the United States as a visitor on March 20,

1999. (See Exhibit 9, pages numbered by the Court in the

hearing in the lower right-hand corner of the passport

page.) This in itself would not be conclusive, however,

respondent’s passport on the previous page shows an entry

stamp into New Delhi marked 2-4-1999. That is April 2,

1999. (See Exhibit 4, page 22). The Court and parties

agreed that Indian entry stamps are oval, while departure

App. 15

stamps are rectangular. The Court therefore finds on this

basis that respondent was not in India when she said she

was arrested and raped.

When respondent testified that she was married 12

days after her arrival on April 13, 2001, the Court had a

sense then that the wedding pictures in the respondent’s

application did not look like a wedding which was put

together in less than two weeks. The respondent testified

that 150 people attended the wedding. On examination by

the Service, she insisted, however, that most of these were

not guests of the bridge [sic] and groom. She testified that

they were people who were at the gurdwara (or temple) on

a Sunday, because a common meal was served on that day.

She was evasive about whether and how the wedding had

been planned, and her testimony about the number of

guests invited from her family or by her was vague and

disjointed. The Court has determined, however, that Apri!

25, 2001, the day of her wedding, was not a Sunday but a

Wednesday. The respondent was asked about this and she

said that she had been thinking of somebody else. The

Court does not find this to be a convincing explanation.

The Court notes that respondent was also given an

opportunity to explain the fact that her passport entries do

not support her claim of being detained from March 30,

1999 to April 2, 1999. Despite given that opportunity, the

respondent continued to insist that she had been telling

the truth about her detention. The Court does not find this

explanation convincing, either.

The Court finds that the events surrounding the

March 30, 1999 arrest are material because this is the

most single serious element of her claim for asylum. The

Court finds that the wedding timing is also material

App. 16

because it means that if she intended to stay in India and

fled only in fear of her life, a wedding on the scale depicted

in her photographs is very unlikely to have been put

together in such a short time. That leads the Court to the

conclusion that the wedding had been planned some time

in advance and respondent had previously planned to

leave India when she did. The Court’s finding that respon-

dent’s testimony about the March 30, 1999 arrest not

being credible lends weight to this interpretation of the

timing of her wedding. Because of the seriousness of both

of these matters, the Court finds that respondent’s appli-

cation for asylum is not credible in its entirety.

Asylum and withholding of removal

An applicant for asylum or withholding of removal

bears the evidentiary burdens of proof and persuasion.

Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) modified,

Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); 8

C.F.R. 208.14, 242.17(C).

An application for asylum must meet the statutory

definition of a “refugee”, which is defined as an individual

who is unwilling or unable to return to his country of

nationality (or of having none, the country in which he last

habitually resided) because of past persecution or because

he has a well-founded fear of future persecution on ac-

count of his race, religion, nationality, membership in a

particular social group or political opinion. INA Section

101(a)(42)(A).

To establish that his fear is well-founded, the respon-

dent must show that it is both subjectively genuine and

objectively reasonable through credible, direct and specific

App. 17

evidence which demonstrates that he possesses a belief or

characteristic a persecutor seeks to overcome in others by

means of punishment of some sort, the persecutor is aware

or could become aware that he possesses this belief or

characteristic, the persecutor has the capability of punish-

ing him, and the persecutor has the inclination to punish

him. Mogharrabi, supra.

An applicant for withholding of removal must demon-

strate a clear probability of persecution on account of one

or more of the statutorily enumerated grounds. INS uv.

Stevic, 467 U.S. 407 (1984). The Court in Stevic held that

the “clear probability” standard requires a showing that it

is more likely than not that he would be subject to perse-

cution.

The Supreme Court has held that the terms “well-

founded fear” and “clear probability” are significantly”

different and that the burden of proof required to establish

eligibility for asylum is lower than that required for

withholding of removal. INS v. Cardoza-Fonseca, 480 U.S.

421 (1987).

In the present case, the Court has found that respon-

dent’s application is not credible. The Court therefore

cannot find the respondent has established either past

persecution or a well-founded fear of future persecution. It

follows from the foregoing that if the respondent has not

met the lower standard required for asylum she cannot

meet the higher standard required for withholding under

the Act. The Court therefore cannot find that respondent

has established that it is more likely than not that she will

be persecuted on the one [sic] of the statutory grounds if

she is returned to India.

App. 18

Pursuant to Section 208(d)(4) of the Act, a person who

knowingly files a frivolous application for asylum in the

United States is barred forever from receiving any benefits

under the Immigration or Nationality Act. A frivolous

application is defined as one which contains statements or

responses that are deliberately fabricated. By regulation, a

finding that an application is frivolous is to be made only if

the Immigration Judge is satisfied that the applicant

during the course of the proceedings has had sufficient

opportunity to account for any discrepancies or implausi-

ble aspects of her claim. 8 C.F.R. Section 208.20.

In the present case, the Court finds that the elements

of respondent’s claim discussed above which lead the

Court to find that her application is incredible also is a

proper basis for finding that respondent’s application is

frivolous. The Court finds that in the event a reviewing

court should find that the wedding timing question is not a

proper one for the frivolous finding, the Court finds that

the passport and March 30, 1999 discrepancies are suffi-

cient by themselves.

The Court therefore finds that for the foregoing

reasons respondent has been given adequate opportunity

to explain, have [sic] not done so convincingly, and her

application is deemed to be frivolous.

CAT

Aliens in exclusion, deportation or removal proceed-

ings on or after March 22, 1999 may apply for withholding

of removal under the United Nations Convention Against

Torture and other forms of cruel, inhuman or degrading

treatment or punishment (Convention Against Torture).

App. 19

See 8 C.F.R. Section 208.18(b)(1). See also 8 C.F.R. Sec-

tions 208.16 and 208.17.

The application for withholding of removal under the

Convention Against Torture bears the burden of proving

that it was “more likely than not” that she would be

tortured if removed to the proposed country of removal.” 8

C.F.R. Section 208.16(c)(2). As with asylum, this burden

can be established by testimony without corroboration if

the testimony is credible. See id.; see also Matter of Y-B,

Interim Dec. 3337 (BIA 1998). In the present case, the

Court has found the respondent’s application is not credi-

ble. The Court therefore finds that respondent has not

made the necessary showings for withholding under the

Convention Against Torture. The Court therefore finds

that respondent is in eligible [sic] for withholding of

removable [sic] under the Convention Against Torture

because she has not proven “more likely than not” that she

will be tortured if forced to return to India.

Voluntary departure

The respondent has also applied for voluntary depar-

ture under INA section 240B(b)(1) which requires that she

show that she has been physically present in the United

States for at least one year immediately preceding the

date that she was served with her NTA, that she has been

a person of good moral character for at least five years

immediately preceding the application that she is not

deportable under INA Section 237(a)(2)(iii) or 237(a)(4)

and that she has established by clear and convincing

evidence that she has the means and intent to depart the

United States.

App. 20

The Court finds that respondent is barred from

establishing good moral character as one who has given

false testimony for the purpose of obtaining any benefits

under this Act. INA Section 101(f)(6). The Court finds that

respondent was put under oath today to tell the truth and

that she has not done so. The Court finds that respondent

has insisted that she has been telling the truth in the face

of compelling evidence to the contrary. The Court finds

therefore the respondent is not eligible for voluntary

departure.

For the foregoing reasons and after considering all

evidence of record in this case, the following orders will be

entered:

ORDER

IT IS ORDERED THAT the respondent’s applications

for asylum, withholding of removal pursuant to Section

241(b)(3) of the Act and withholding of removal under the

Torture Convention be and hereby are now DENIED.

IT IS FURTHER ORDERED THAT respondent’s

application for voluntary departure is and hereby is now

DENIED.

IT IS FURTHER ORDERED THAT respondent be

removed and deported to India on the charge as contained

in the Notice to Appear.

/s/ Robert Yeargin

ROBERT YEARGIN

U.S. Immigration Judge

A95414664 October 7, 2002

App. 21

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GURPREET KHURANA, No. 04-71225

Petitioner, Agency No. A95-414-664

v. ORDER

ALBERTO R. GONZALES, | (Filed Sep. 30, 2005)

Attorney General,

Respondent.

Before: SKOPIL, BOOCHEVER, and LEAVY, Circuit

Judges.

The panel has voted to deny appellant’s petition for

panel rehearing and recommends denial of the petition for

rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.

The petition for panel rehearing and petition for

rehearing en banc are DENIED.

(2) [ ~ siom" ee U.S.

apn 7 - 2006

No. 05-852

In the Supreme Court of the Anited States

OFFICE CF THE CLERK

GURPREET KHURANA, PETITIONER

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

ALISON MARIE IGOE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly sustained the

immigration judge’s finding that petitioner’s asylum

application was frivolous based on determinations that

petitioner fabricated her testimony and that the fabrica-

tion was material to her claim.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

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Muhanna v. Gonzales, 399 F.3d 582 (3d Cir. 2005) ...... 9

Selami v. Gonzales, 423 F.3d 621 (6th Cir. 2005) ...... 8,9

Statutes and regulation:

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.:

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(111)

Jn the Supreme Court of the United States

No, 05-852

+URPREET KHURANA, PETITIONER

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is

not published in the Federal Reporter, but is reprinted

in 134 F. App’x 147. The decisions of the Board of Im-

migration Appeals (Pet. App. 5-8) and the immigration

judge (Pet. App. 9-20) are unreported.

JURISDICTION

The court of appeals entered its judgment on June 8,

2005. A petition for rehearing was denied on September

30, 2005 (Pet. App. 21). The petition for a writ of certio-

rari was filed on December 29, 2005. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Immigration and Nationality Act provides

that, “[i]f the Attorney General determines that an alien

(1)

2

has knowingly made a frivolous application for asy-

lum * * *, the alien shall be permanently ineligible for

any benefits under” the Act’s provisions. 8 U.S.C.

1158(d)(6).' By regulation, the Attorney General has

determined that an application will be deemed “frivo-

lous,” within the meaning of Section 1158(d)(6), if the

immigration judge or the Board of Immigration Appeals

(Board) “specifically finds that the alien knowingly filed

a frivolous asylum application.” 8 C.F.R. 1208.20. An

asylum application is “frivolous” if “any of its material

elements is déliberately fabricated.” Jbid. The regula-

tion further provides that a finding of frivolousness shall

be made only if, in the view of the immigration judge or

the Board, the alien has had a “sufficient opportunity to

account for any discrepancies or implausible aspects of

the claim.” /bid. -

2. Petitioner is a native and citizen of India who has

made numerous entries into the United States. Pet.

App. 10-11. According to petitioner, “she was never po-

litically active in India.” /d. at 11. She claimed, how-

ever, that after participating in a Sikh rally on March 30,

1999, she was arrested by Indian police and detained

until April 2, 1999. Petitioner alleged that, during her

detention, she was physically abused and raped. /d. at

11-12. Petitioner further alleged that the police visited

her house on April 13, 1999, and three days later she left

for the United States. She testified that, after arriving

in the United States, she lived with a friend to whom she

was later married. /d. at 12.

Petitioner returned to India in August 2000 and

again in March 2001. Pet. App. 12-13. She testified that

ine aie a '

A finding of frivolousness does not preclude the alien from seeking

withholding of removal, however. 8 C.F.R. 1208.20.

5)

she was arrested and beaten on April 13, 2001, following

another Sikh rally. /d. at 13. Four days later, petitioner

arrived in the United States on a visitor’s visa. Peti-

tioner testified that she was married eight days later at

an elaborate wedding ceremony. She submitted photo-

graphs of her wedding to the immigration judge. /bid.

3. When petitioner overstayed her visa, the Immi-

gration and Naturalization Service commenced removal

proceedings against her.” Petitioner applied for asylum

and withholding of removal, claiming persecution on

account of her religion, political opinion, and member-

ship in a particular social group. Pet. App. 9-10. The

immigration judge denied relief on the ground that peti-

tioner’s asylum application was not credible and was

frivolous. /d. at 9-20.

In evaluating petitioner’s claim, the immigration

judge expressly took into account “the rationality, inter-

nal consistency and inherent persuasiveness of her testi-

mony,” the materiality of any discrepancies and incon-

sistencies, and petitioner’s explanations for problems

with her evidence. Pet. App. 14. The immigration judge

identified two problems with petitioner’s testimony that

he considered to be “fatal” to her case. /bid.

First, petitioner’s claim that she was detained and

abused by Indian police from March 30 to April 2, 1999,

was irreconcilable with the evidence from her passport,

which had “multiple stamps” demonstrating that she

was in the United States from March 20, 1999, until

April 2, 1999. Pet. App. 14-15. The immigration judge

further noted that petitioner’s passport showed that she

- The Immigration and Naturalization Service's immigration-en-

foreement functions have since been transferred to United States Im-

migration and Customs Enforcement in the Department of Homeland

Security. See 6 U.S.C. 251 (Supp. IT 2002).

4

had voluntarily returned to India on April 2, 1999, at the

very time she claimed to be fleeing that country based

on versecution. /bid. When given the opportunity to

explain the discrepancy, petilioner insisted that her tes-

timony was accurate. /d. at 15. The immigration judge

“dlid] not find th{at] explanation convincing” in light of

the undisputed contents of the passport. /bid. The im-

migration judge further found that this flaw in the evi-

dence was “material” because “this is the most single

serious element of her claim for asylum.” /bid.

Second, the immigration judge found that peti-

tioner’s testimony that she returned to the United

States on April 13, 2001, “in fear of her life” was not

credible because of the elaborate wedding ceremony

that took place within days of her return. Pet. App. 13.

The immigration judge reasoned that “a wedding on the

scale depicted in [petitioner’s] photographs,” id. at

16—with 150 people in attendance, id. at 15—“is very

unlikely to have been put together in such a short time,”

and in the wake of fleeing for one’s life, id. at 16.

The immigration judge further noted that peti-

tioner’s responses to questioning about the wedding ar-

rangements were “evasive,” “vague and disjointed.”

Pet. App. 15. She insisted that the 150 guests were not

guests, but were individuals who happened to be at the

temple on Sunday because a common meal was served.

Ibid. When petitioner was informed that her wedding

date fell on a Wednesday, rather than a Sunday, the only

explanation that she offered was that “she had been

thinking of somebody else.” /bid. The immigration

judge found that explanation unconvincing, and con-

cluded that the evidence demonstrated that “the wed-

ding had been planned some time in advance and [peti-

tioner] had previously planned to leave India when she

5

did” because of her impending wedding, rather than

because of any fear of persecution. /d. at 16. Because

the flaw in petitioner’s testimony went to the basis for

her departure from India, the immigration judge found

the inconsistency to be material and “serious|].” /d. at

15, 16.

The immigration judge accordingly denied petitioner

relief on the ground that her application was not credi-

ble. Pet. App. 16-17. The immigration judge also sepa-

rately ruled that her application was “frivolous,” under

8 U.S.C. 1158(d)(6). In so holding, the immigration

judge emphasized that a frivolousness determination

must be based upon a finding that petitioner “know-

ingly” filed and pursued an application that “contains

statements or responses that are deliberately fabri-

cated.” Pet. App. 18. The immigration judge then found

that those requirements were satisfied by the same evi-

dence that established petitioner’s application to be non-

credible, citing both the timing of the re-entry and wed-

ding as well as the conflict in timing between the

claimed persecution and petitioner’s presence in the

United States. /bid.; see id. at 20 (petitioner “has given

faise testimony for the purpose of obtaining * * * ben-

efits under this Act”). Finally, the immigration judge

noted that, although petitioner was given the opportu-

nity to explain the problems in her testimony, she “[had]

not done so convincingly.” /d. at 18.

4. Petitioner appealed to the Board, but challenged

only the immigration judge's credibility determination.

Petitioner did not appeal the immigration judge’s find-

ing that her application was frivolous. Pet. App. 6, 7 n.1,

The Board affirmed, jd. at 5-8, holding that

[t]he record reflects that the shortcomings and in-

consistencies cited by the Immigration Judge are

present in the record; that such shortcomings and

inconsistencies provide specific and cogent reasons

to conclude that the respondent’s claim is not credi-

ble; and that the respondent on appeal has not pro-

vided an adequate explanation for these discrepan-

cies and shortcomings.

Id. at 6. In particular, the Board noted that petitioner’s

claim that she was detained and abused by Indian police

at a time when she was already in the United States “is

an extremely substantial discrepancy which goes to the

substance of her claim.” /d. at 7. The Board also found

it “difficult to reconcile the respondent’s return to India

with her claimed fear of persecution.” /bid.

5. The court of appeals unanimously affirmed in an

unpublished decision. Pet. App. 1-3. The court did not

address the government’s argument that petitioner's

challenge to the frivolousness ruling had been waived by

her failure to appeal that determination to the Board.

Gov't C.A. Br. 20-22. The court did conclude, however,

that substantial evidence in the record supported the

immigration judge’s finding that petitioner had filed a

“frivolous application” that “contain|ed! deliberate fabri-

cations,” within the meaning of 8 U.S.C. 1158(d)(6) and

& C.F.R. 1208.20. Pet. App. 2. The court also held that

the immigration judge had afforded petitioner “ample

opportunity to explain the several inconsistencies that

led to the finding of frivolousness,” but that petitioner

had not satisfactorily done so. /d. at 3.

ARGUMENT

Petitioner argues (Pet. 6-14) that this Court should

grant review to address whether a determination of

frivolousness under & U.S.C. 1158(d)(6) ean be made in

the absence of findings that the alien “knowingly or de-

liberately fabricated a material fact,” Pet. 6 (emphasis

omitted). That claim does not warrant review for three

reasons.

First, there is a procedural barrier to this Court’s

review of the question presented. Petitioner did not

appeal the immigration judge's frivolousness determina-

tion to the Board or, more particularly, argue to the

Board that the immigration judge had failed to make the

findings required by the statute and regulation. See

Pet. App. 7n.1. That failure to exhaust the administra-

tive remedies available to review the immigration

judge’s frivolousness determination bars the court of

appeals and, in turn, this Court from considering the

question presented. The Immigration and Nationality

Act permits judicial review of a final order of removal

“only if,” inter alia, “the alien has exhausted all admin-

istrative remedies available to the alien as of right.” &

U.S.C. 1252(d)1. Even apart from that statutory bar,

petitioner’s waiver of the claim would provide an inde-

pendent basis for sustaining the court of appeals’ judg-

ment, and would pretermit resolution of the question

presented.

Second, the record in this case does not present the

question petitioner raises. Petitioner seeks this Court’s

review (Pet. 6) of whether a finding of frivolousness can

be made “without finding that the alien knowingly or

deliberately fabricated a material fact.” In this case, the

court of appeals did not eschew such findings; it af-

8

firmed because substantial evidence supported the “[im-

migration judge]’s finding that [petitioner] filed a frivo-

lous application containing deliberate fabrications.”

Pet. App. 2 (emphasis added). The immigration judge,

in turn, specifically noted that he was required to find,

inter alia, that petitioner’s application contained “delib-

erately fabricated” information, and he concluded that

the record provided a “proper basis for finding” that

legal standard to be met. /d. at 18; see id. at 20 (peti-

tioner “has given false testimony for the purpose of ob-

taining * * * benefits under this Act”).

Petitioner’s insistence (Pet. 7) that this case concerns

“purely innocent misstatements of fact” overlooks that

petitioner never attempted to explain to the immigration

judge that her repeatedly reaffirmed testimony that she

was detained and abused by Indian guards during the

same period in time that her passport places her in the

United States (see Pet. App. 15) was actually a “purely

innocent misstatement(| of fact,” nor does she explain

what “purely innocent misstatements of fact” underlay

the attendance of 150 people at her elaborate wedding

just days after she alleges she abruptly and unexpect-

edly fled India in fear for her life. In any event, the

court of appeals’ decision neither holds nor suggests

that a frivolousness determination can be made based on

innocent misstatements of fact or, more particularly,

without a finding that the alien knowingly or deliber-

ately fabricated material information.

Third, there is no confiict in the circuits. Petitioner

notes (Pet. 6-11) that a number of circuits have sus-

tained findings by immigration judges and the Board

that asylum applications were frivolous. See Selami v.

Gonzales, 423 F.3d 621 (6th Cir. 2005); Efe v. Ashcroft,

293 F.3d 899 (Sth Cir. 2002); Barreto-Claro v. United