Opposition Brief — Khurana v. Gonzales (No. 05-852)

9

States Attorney General, 275 F.3d 1334 (11th Cir. 2001).

The court of appeals in this case applied the same legal

standard as those courts and its decision is in full accord

with their rulings. See Selami, 423 F.3d at 624 (uphold-

ing finding of frivolousness based on the alien’s submis-

sion of a fraudulent newspaper article intended to cor-

roborate his testimony); Efe, 293 F.3d at 908 (frivolous-

ness determination upheld based on the alien’s having

“gone back and forth with the facts and misrepresented

his case several times,” while failing to clarify his con-

tradictory testimony); Barreto-Claro, 275 F.3d at 1339

(frivolousness determination based on a false statement

in the alien’s application, which he compounded with

false testimony about how he came to the United

States).

Petitioner’s reliance (Pet. 6-7) on Muhanna v. Gon-

zales, 399 F.3d 582 (3d Cir. 2005), is misplaced. In that

case, the Third Circuit reversed an immigration judge’s

determination of frivolousness that rested entirely on an

inconsistency between the alien's testimony and asy!um

application. /d. at 586. The court stressed that a finding

of frivolousness required more than a finding that the

testimony was not credible, and required a full hearing

on the applicant’s underlying asylum claim. /d. at 5&8.

The Third Circuit reversed because the immigration

judge’s truncation of the hearing following a preliminary

determination that the alien was not credible precluded

an assessment of whether the inconsistency was a “ma-

terial element” of the asylum application. /bid. The

Third Circuit further found that the alien’s explanation

for the inconsistent testimony was plausible. /bid.

Here, by contrast, the court of appeals upheld the immi-

gration judge's distinct finding, separate from his credi-

bility ruling and after a full hearing, that the numerous

10

inconsistencies in petitioner’s testimony were both delib-

erately fabricated and material. Pet. App. 2, 17-18, 20.

In the end, petitioner’s argument for this Court’s

review rests not upon any new or different legal stan-

dard applied by the court of appeals, but upon peti-

tioner’s disagreement with that court’s application of the

law to the facts of her case. That record-bound question

does not merits this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

ALISON MARIE IGOE

Attorneys

APRIL 2006

@ 9 FILED

No. 05-852 APR 17 2006

bie [ SORE see ae |

In The

Supreme Court of the Anited States

¢

GURPREET KHURANA,

Petitioner,

ALBERTO R. GONZALES,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

S

REPLY BRIEF FOR THE PETITIONER

¢

MARC VAN DER Hout

Counsel of Record

AVANTIKA SHASTRI

Attorney

VAN DER HOUutT, BRIGAGLIANO

& NIGHTINGALE, LLP

180 Sutter Street, Fifth Floor

San Francisco, CA 94104

(415) 981-3000

—-

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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SE ENE SON I MORENOUIOD cccccceceecusovesscocccscccesccsvevesesces 1

8

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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Alexandrov v. Gonzales, ___ F.3d. __, 2006 U:S.

App. LEXIS 8055 (6th Cir. April 4, 2006) ...................... 7

Barreto-Claro v. U.S. Attorney-General, 275 F.3d

Ey SE cliceniedcditchathncencdiscidaaiiadanellintehentéatends 6

Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002).................000. 7

Fongwo v. Gonzales, 430 F.3d 944 (8th Cir. 2005).............. 6

Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir. 2005) .......... 6

Muhanna v. Gonzales, 399 F.3d 582 (3d Cir. 2004)........ 5, 7

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

Sterkaj v. Gonzales, 439 F.3d 273 (6th Cir. 2006)............... 6

AGENCY DECISIONS

Matter of A-S-, 21 I. & N. Dec. 1106 (BIA 1998)................. 5

Matter of S-A-, 22 1. & N. Dec. 1328 (BIA 2000)................. 4

STATUTES

ae es Oe Be icccctacnieictecientubiidtattlidienitiadiecdtes 1, 3, 6, 7

fis CoM 6: | ARRNNUIOR SIE Rieke eee Nias eerste er Ge vei ee 2

REGULATIONS

Br ae cites sitiititdancinhs Atlan scedieaancteepetibtntebalaneaasaiel 3, 6

DTD. ee SF Re tse vicivecncdntinctbercsucensieceabentnamnosioounnte 3, 6

REPLY BRIEF FOR PETITIONER

This Court should grant this petition for writ of certio-

rari to clearly establish the legal standards required for a

finding that a noncitizen filed a “frivolous asylum applica-

tion” pursuant to 8 U.S.C. § 1158(d)(6).

Contrary to Respondent’s allegations, the Court

clearly has jurisdiction over this petition. In addition, this

petition presents compelling reasons warranting this

Court’s review, including raising an important question of

federal law where there is an intra-Circuit conflict that

has not yet been settled by this Court.

1. Respondent erroneously contends that this Court

does not have jurisdiction over this petition because

Petitioner failed to exhaust her administrative remedies.

Brief in Opposition (“Br. in Opp.”) 7. Respondent also

erroneously contends that the Ninth Circuit Court of

Appeals (“Ninth Circuit”) improperly considered the

“frivolous finding.” Id.

As an initial matter, in support for this contention,

Respondent relies on the Board of Immigration Appeals’

(“Board”) statement in footnote 1 of its decision to assert

that Petitioner never exhausted her administrative reme-

dies in appealing to the Board the immigration judge’s

conclusion that she filed a frivolous asylum application.

App. 7 n.1. It is Respondent’s assertion that the issue was

waived before the Board, and therefore Respondent

asserts that this Court is deprived of authority to review

the matter. However, in its decision, the Ninth Circuit

clearly considered the immigration judge’s finding that

Petitioner filed a frivolous asylum application, App. 2-3.

The Ninth Circuit only had the authority to consider such

an issue if it had been properly before the Court. See 8

U.S.C. § 1252(d)(1). Because the Immigration and National-

ity Act requires the exhaustion of all administrative reme-

dies, the Ninth Circuit simply would not have addressed

the issue if it had not been properly raised below. Id.

Respondent appears to assert that the Ninth Circuit

erred in considering the immigration judge’s finding that

Petitioner filed a frivolous asylum application. Simply put,

however, this Court must review the decision of the Ninth

Circuit and not the decision of the Board. The Ninth

Circuit clearly found that administrative remedies had

been exhausted.

If, as Respondent alleges, the Ninth Circu’* improp-

erly reached the issue in the first place, then that error

itself warrants this Court’s review.

In addition, also contrary to Respondent’s contentions,

the Ninth Circuit correctly found that Petitioner ex-

hausted her administrative remedies. The record shows

that she challenged the frivolous asylum filing finding at

every stage of her proceedings below. In her appeal before

the Board, Petitioner asserted that “|the immigration

judgel was wrong to state that she had filed a frivolous

asylum application.” Ninth Circuit Administrative Record

(“A.R.”) 31; see also A.R. 45 (contesting, in her notice of

appeal to the Board, that the immigration judge “said that

[she] had lied on her application.”). Therefore, she fully

exhausted her administrative remedies and this Court has

jurisdiction over this petition.

2. Respondent also fails to understand the critical

issue in this case, which is not a factual matter but a legal

matter. Respondent contends that the Ninth Circuit’s

3

decision contained a finding of deliberate fabrication

because the Ninth Circuit stated that it found substantial

evidence supporting the immigration judge’s “frivolous

finding.” Br. in Opp. 7-8. The fact that the Ninth Circuit

recited that it found deliberate fabrication is not enough to

support a “frivolous finding” under 8 U.S.C. § 1158(d)(6).

What Petitioner contests in this petition is whether the

evidence was sufficient as a matter of law to show deliber-

ate fabrication. Without sufficient evidence of intentional

fabrication, the Court effectively made a “frivolous find-

ing” without a showing of that required element under 8

U.S.C. § 1158(d)(6).

Under the regulations for 8 U.S.C. § 1158(d)(6), the

judge must make a specific finding that a material ele-

ment of an asylum application was “deliberately fabri-

cated” before he or she can find that the asylum

application is frivolous. See 8 C.F.R. §§ 208.20, 1208.20; see

also 8 U.S.C. § 1158(d)(6) (requiring that the Attorney

General determine whether “the alien has knowingly

made a frivolous application for asylum”).

The Ninth Circuit’s decision never specifically identi-

fies the evidence that it considered to be the basis for

“deliberate fabrication.”, Nothing in the Ninth Circuit

decision demonstrates what evidence it considered in

concluding that Petitioner intentionally or deliberately

made misstatements to the Court. The Ninth Circuit

affirmed the immigration judge’s decision on the ground

that Petitioner had adequate opportunity to explain the

several alleged inconsistencies in the record that sup-

ported the immigration judge’s finding that the asylum

application was frivolous. App. 2. Yet the immigration

judge’s “frivolous finding” itself was based on only an

4

adverse credibility finding and nothing more. See App. 18

(“In the present case, the [Immigration] 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 applica-

tion is frivolous.”). A finding that the applicant is not,

credible is insufficient to meet the requirements of 8

U.S.C. § 1158(d)(6). There must also be a finding the

applicant knowingly or deliberately fabricated material

information in the application. The Ninth Circuit reached

the first step, but never the second.

There was no evidence in the record that Petitioner

knowingly or deliberately fabricated her asylum application,

as opposed to just not being credible, that would support the

immigration judge’s decision or the Ninth Circuit’s affir-

mance of that decision. As Petitioner demonstrated in her

petition for writ of certiorari, the evidence suggests she

made an innocent misstatemer:. See Petition for Writ of

Certiorari (“Pet.”) 12-13. She has also repeatedly sought to

explain these inconsistencies to the immigration judge, the

Board, and the Ninth Circuit during her hearing and in

her briefs on appeal. See e.g., App. 7, 15.

Even assuming arguendo that Petitioner failed to

adequately explain the alleged inconsistencies, her failure

in this regard is insufficient to constitute evidence of

deliberate fabrication. The legal standard for adverse

credibility findings already requires that the immigration

judge give the applicant an adecate opportunity to

explain any alleged inconsistencies before the judge may

make an adverse credibility finding. In Matter of S-A-, 22

I. & N. Dec. 1328, 1331 (BLA 2000), the Board stated that

5

adverse credibility decisions would only be upheld where a

review of the record reveals that (1) the discrepancies and

omissions described by the immigration judge are actually

present in the record; (2) such discrepancies and omissions

provide specific and cogent reasons to conclude that the

alien provided incredible testimony; and (3) the alien has

failed to provide a convincing explanation for the discrep-

ancies and omissions. See also Matter of A-S-, 21 1. & N.

Dec. 1106, 1109 (BIA 1998).

The crucial difference between an adverse credibility

finding and a “frivolous finding” is the additional showing of

intent (“knowing” or “deliberate” fabrication) required for a

“frivolous finding.” Without pointing to additional evidence

of an intent to deceive, the same evidence cannot be used to

support the separate and additional element of deliberate

fabrication for a “frivolous finding”; rather, a “frivolous

finding” requires more. See Muhanna v. Gonzales, 399 F.3d

582, 588 (3d Cir. 2004) (reversing the immigration judge’s

“frivolous finding” not simply because of procedural irregu-

larities during the hearing, but also because the inconsis-

tencies in the petitioner’s testimony did “not necessarily

support a finding that the application was false, but rather

-end[ed] only to show that [the petitioner] was not credible

at one point during the hearing.”).

To allow the Ninth Circuit to uphold the “frivolous

finding” on this evidentiary record would improperly

equate the two findings - adverse credibility and the

“frivolous filing” of an asylum application ~ without

requiring a higher burden of evidentiary proof to support

the immensely harsh consequences of the latter finding.

6

See 8 U.S.C. § 1158(d\(6) (stating that an applicant for

asylum who has filed a frivolous asylum application shall

be permanently ineligible for any benefits under the

Immigration and Nationality Act).

Thus, this Court must review this important federal

question to determine whether the evidence in the record

was legally sufficient to support a “frivolous finding” under

8 U.S.C. § 1158(d)6) and 8 C.F.R. §§ 208.20, 1208.20.

3. Respondent also erroneously portrays this case as

one that does not involve intra-Circuit conflict. Br. in Opp.

8-10. According to Respondent, the other Courts of Appeals

have applied the same legal standard that was applied in

the Ninth Circuit in this case. This analysis is incorrect

given that the legal and evidentiary standards applied to

find fabrication in the Third, Fifth, Sixth, Eighth, and

Eleventh Circuits have been distinctively different than

the standard applied in the Ninth Circuit for this case.

This case does not contain any of the evidence of

deliberate or intentional fabrication that was present in

those cases, such as: a recantation by the petitioner

(Barreto-Claro v. U.S. Attorney-General, 275 F.3d 1334,

1338-39 (11th Cir. 2001), described at Pet. 11), the submis-

sion of fraudulent documents (Selami v. Gonzales, 423 F.3d

621, 626-27 (6th Cir. 2005), described at Pet. 11; Fongwo v.

Gonzales, 430 F.3d 944, 947 (8th Cir. 2005) (upholding

“frivolous finding” where petitioner had submitted fraudu-

lent documents); Ignatova v. Gonzales, 430 F.3d 1209, 1214

(8th Cir. 2005) (finding that the petitioner had submitted

fraudulent documents); Sterkaj v. Gonzales, 439 F.3d 273,

278-79 (6th Cir. 2006) (finding that the petitioner submit-

ted a fabricated summons and “wanted” document)), or

7

contradictory testimony across different hearings (Efe v.

Ashcroft, 293 F.3d 899, 908 (5th Cir. 2002), described at

Pet. 10). Cf. Alexandrov v. Gonzales, __ F.3d. ___, 2006

U.S. App. LEXIS 8055 (6th Cir. April 4, 2006) (vacated

“frivolous finding” because submitted documents had not

been shown to be fraudulent).

Instead, as in Muhanna, supra, this case contains

only an adverse credibility finding without any evidence of

deliberate fabrication. See Pet. 9-10. In Muhanna, the

Third Circuit was clear that there are specific “factual

findings mandated by ([§ 1158(d)(6)'s] implementing

regulation.” 399 F.3d at 588. The Court was also clear

that, “it is because of [the] severe consequences that the

regulation requires more: a finding of deliberate fabrica-

tion of a ‘material element’ of an application, plus an

opportunity for the alien to account for inconsistencies.”

Id. In contrast to five other Circuits, the Ninth Circuit has

not required more evidence as a legal matter and has

essentially conflated the credibility determination with the

“frivolous finding” determination.

Thus, this Court should review this petition so as to

resolve this intra-Circuit conflict, and to establish a clear

and uniform legal standard that the Courts of Appeals

must apply before making such a significant finding.

+

CONCLUSION

For the foregoing reasons, and for those in the peti-

tion, this petition for writ of certiorari should be granted.

Respectfully submitted,

Marc VAN DER HOUT

Counsel of Record

AVANTIKA SHASTRI

Attorney

April 17, 2006

REPLY BRIEF