Petition for Writ of Certiorari — Ursini v. Gonzales (No. 06-1400)

Supreme Court. US

PPL

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D 061400 A£e7 1 § 2007

No, OFFICE OF THE CLEtK

IN THE

Supreme Court of the Anited States

Nadezhda Ursini,

Petitioner,

v.

Alberto Gonzales, Attorney General,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DIANA F. CHAMBERLAIN ELENA E. TSIPRIN

Law Offices of Counsel of Record

Elena E. Tsiprin Law Offices of

14670 NE 8th Street, Elena E. Tsiprin

Suite 210 14670 NE 8th Street,

Bellevue, WA 98007 Suite 210

Bellevue, WA 98607

(425) 614-4744

Counsel for Petitioner

QUESTIONS PRESENTED

Congress has authorized Immigration Courts to

determine if an applicant for asylum has submitted a

frivolous asylum application. Immigration and Nationality

Act § 1158(d)(6). If such a determination is made, the

applicant is forever barred from immigration benefits and

relief in the United States. However, such a finding is

only valid if substantial evidence supports the finding that

the applicant knows her claim is false when she files her

asylum application. Congress imposed this substantial

limitation on frivolous findings because the consequences

are so dire. For this reason, few frivolous findings are

made, and they are only upheld when clear, tangible, and

credible evidence support the finding.

The first issue presented relates to frivolous findings.

Specifically, what is the correct standard to be used by the

Immigration Courts; what is the appropriate time to

evaluate the applicant’s knowledge; and what constitutes

sufficient evidence in properly determining if an asylum

application is frivolous. These interrelated topics pose

novel questions for this Court as well as the Board of

Immigration Appeals (“BIA”) and are the subject of

current circuit splits.

The second issue deals with the lower court’s gross

departure from the accepted and usual course of judicial

proceedings. Specifically, the lower court’s streamlining

in a case of this- magnitude is a gross departure from

accepted judicial proceedings; its choice to evaluate, on

the merits, an unclear and inconsistent BIA decision

abandons its review duties; and its judgment ultimately

conflicts with holdings in sister circuits and precedent.

(1)

TABLE OF CONTENTS

Page

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SPR CIE PRAT IIR ED vikcnnccecescccssevovesceern scenic Vv

SIT IEE iieicind ncviaeddinstovncsceusendenavecsedees |

PRT NPI dicpciacu el ese io sssebthccusdeiennaiesenens l

STATUTORY PROVISIONS AND AGENCY

REATULA THINS PIV VED ccc ccecssccocsecersscavesecers 2

REIGNS exh aists ens, i ih peor Hare 3

Pe TY TRIE in cick vib es nrteegneccxeswinnes 7

B. Factual Background. ................ nteadteeneseotapers 7

IN INN i cnictsa ucsivst es deoineupnckeeiess 9

REASONS FOR GRANTING THE PETITION ......... 10

A. A Uniform Standard That Properly

Embodies The Frivolous Finding

Statute And Regulation Is Required

To Ensure Essential Oversight And

POE III i cicccinveskusdeacmaddcenasa’s 10

B. The Federal Courts Of Appeal Are

Irreconcilably Split On Several Issues

Relevant To Frivolous Findings..................... 13

(111)

TABLE OF CONTENTS -— continued

Page

C. Review Is Also Warranted Because

The Decision Below Is Clearly

Incorrect And Reveals The Panel’s

Gross Departure From Usual Judicial

PUI Sci divas craks tuccuicd an acca bus incirvcehaes 16

1. The Ninth Circuit’s “streamlining”

in a case of this magnitude is a

gross departure from the usual course

i)

The Ninth Circuit’s decision to even

review the BIA’s unclear and

inconsistent decision that did not

explicitly reach the frivolous finding

1s also a gross departure from the usual

course of judicial proceedings............. 19

3. The Ninth Circuit’s decision on the

merits conflicts with decisions in its

sister circuits as well as with its own

SNOEUIE Sus ices ded cai ee jaceet cauesshueceine 20

D. This Issue Is Of Substantial Practical

Importance And Will Affect Many

PTY PCIE io ies sick ctestccocaveiekateeine 22

RP ENGI co cndiccecond toss sandsiass aoe akeuieaaes 24

(iv)

TABLE OF AUTHORITIES

Page(s)

CASES

Alexandrov v. Gonzales,

442 F.3d 395 (6th Cir. 2006) ................. 4,5, 15, 20, 21

Almaghzar v. Gonzales,

Be Fe GES CU CHE, DOGO oa scrsecicccccsonccesducenss 14

Arulampalam v. Ashcroft,

Se eT CPN EL) DOESD oocncr a vavatdadveevecdssesseiw l

Aziz v. Gonzales,

Fe ce a LE Es SOT) vvcccccvccccsrvescrevness 5.13

Barreto-Claro v. U.S. Attorney General,

rq ef BR Soh fe ae. - | | ne SEL

Efe v. Ashcroft,

295-650 OOP (5ths Cie, JOGZ) i... occ cccsiccccsess an Ft

Ezeagwuna v. Ashcroft,

Kya g wR, Tk Ea Ae) nA 2

Farah v. Ashcroft,

SO ee BE CO, BOGS oc sinvic vi ccescacecnsccces 4,14

Hanaj v. Gonzales,

446 F.3d 694, 699 (7th Cir. 2006) ................ eee 22

Ignatova v. Gonzales.

SID FSG F209 (BGs Cie. ZOOS) ov ccc cicscecacccecesccscdy t2

(v)

TABLE OF AUTHORITIES — continued

Page(s)

INS v. Ventura,

SF Wi Be RR oko on cecctecdcbcadcdeduccavecs 15, 19-20

Kifleyesus v. Gonzales,

GGL SS Sar CG, BO) oes ccccccccvecvecetcesdoule U2

Kourski v. Ashcroft,

coed Me. Ty, fe Ay. | Rote eee 22

Lin v. Ashcroft.

83 Fed. Appx. 480 (3rd Cir. 2003) .................0.0. 12

Liu v. U.S. Dept. of Justice.

455 F.3d 106 (2nd Cir. 2006) ...........5, 12. 13, 14, 20

Muhanna v. Gonzales.

399 F.3d 583 (3rd Cir. 2005) 22.2.2... cc ccccc eee e ees 4:5. 73

Paramasamy v. Ashcroft.

295 F.3d 1047 (9th Cir. 2002) ....... Sh eka pace aeee tos |

Rivera v. Ashcroft, 387 F.3d 835 (9th Cir. 2004)

amended by 394 F.3d 1129 (9th Cir. 2005) ............. |

Scheerer v. U.S. Attorney General,

BOS F.Seb £34 4 CLE Cie DOGS oicncincocvncscsecccscessdy 22

Selami v. Gonzales.

OFS FS Gre CO Cir, FID iv ovo vesdexasieescecmiadete

Singh v. Gonzales,

OBS E36 TORE CO Cae, ZOD ooo sick cde ceeccnvcceesesses |

(v1)

TABLE OF 4 * HORITIES — continued

Page(s)

Smolniakova v. Gonzales,

ee ee COT CHING, OD sia odocotdccdcdctcdpevedecces |

Sterkaj v. Gonzales,

BFF FOL ST CR, FD occa tocnsecerecdvevess 6, 15

Yemaine-Berhe v. Ashcroft, -

Be Oe FE OE A BO id ib dkaccckrndivecdsniivains 21

Zolotukhin v. Gonzales,

ee fe A ks. Ta dee.) |.) Reedy Seen ee E Py ]

STATUTES

Immigration and Nationality Act (“INA”), Pub. L.

No. 82-414, 66 Stat. 163 (1952) ...............0... passim

INA § 208(b)(1)(B)(i11),

$ U.S.C. § LESBO IMB) «0006. .cccccccccececcrereseee dd

INA § 208(d)(6),

BUS. S TES oi ircicccaiicccsccvces 2-3, 7, 10, 12

INA § 242(a)(2)(B)(11),

BE Ae A IEDs vs cinbyncdy ede e tac yecvieue 2

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (“IRRIRA”’), Pub. L.

No. 104-208, 110 Stat. 3009 (1996) .............. 2,7, 14,21

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B.,

FE ee OR a0 ie heen dnc ¥asenkusynastshrdendees Pay

(vil)

TABLE OF AUTHORITIES -— continued

Page(s)

PB OE 2

BO ee ce iieseiccdaccccevesecs esos cee 2

REGULATION

S CFR. SG See acciacesaineses | ee, 11

(vin)

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Nadezhda Ursini, respectfully petitions for

a writ of certiorari to review the judgment of the Ninth

Circuit in this case.

OPINIONS BELOW

The November 7, 2006, opinion of the court of appeals

(App., infra, la-3a), case number 04-72638, is unreported.

The decision of the BIA (App., infra, 4a-5a), case number

A77-539-697, is unreported. The initial and supplemental

decision of the Immigration Court (App., infra, 6a-18a,

19a-20a), case number A77-539-697, issued by Judge

Kendall Warren (“Judge Warren”) with a handwritten,

post-script frivolous finding order inserted by Judge Anna

Ho (“Anna Ho”),' is unreported.

JURISDICTION

Although the opinion of the court of appeals was

entered on November 7, 2006, the Petitioner timely filed a

‘ Judge Warren, now retired, has been specifically reprimanded by the

Ninth Circuit for his frustration and cultural bias in accepting an

asylum applicant’s testimony and in attacking said testimony. Sce¢

Arulampalam v. Ashcroft, 353 F.3d 679, 682 (9th Cir. 2003).

Judge Ho has also been severely admonished by the Ninth Circuit for

denying relief in decisions replete with bias, prejudgment, non-

impartiality, speculation, conjecture, and improper reasoning. See

Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005); Zolotukhin

v. Gonzales, 417 F.3d 1073 (9th Cir. 2005); Singh v. Gonzales, 403

F.3d 1081 (9th Cir. 2005); Rivera v. Ashcroft, 387 F.3d 835 (9th Cir.

2004) amended by 394 F.3d 1129 (9th Cir. 2005); Paramasamy_v.

Ashcroft, 295 F.3d 1047 (9th Cir. 2002). Judge Ho is currently under

federal review.

2

petition for rehearing and suggestion for rehearing en

banc. The petition for rehearing was denied on January

19, 2007, (App., infra, 21a). The jurisdiction of this Court

is invoked under 28 U.S.C. §§ 1254(1) and 2350(a). The

lower court had jurisdiction pursuant to section

242(a)(2)(b)(11) of the Immigration and Nationality Act.

STATUTORY PROVISIONS AND AGENCY

REGULATIONS INVOLVED

Immigration and Nationality Act (“INA”) § 208(d)(6),

Ss USt. § 1158(d)(6),> as enacted by the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996 (“IRRIRA”), Pub. L. No. 104-208, 110 Stat. 3009

(1996), and as amended in 1997,° provides:

Frivolous applications. - If the Attorney General

determines that an alien has knowingly made a

frivolous application for asylum and the alien has

received the notice under paragraph (4)(A), the

alien shall be permanently ineligible for any

benefits under this chapter, effective as of the date

of a final determination on such application.

In 1997, Congress amended section 208(d)(6) so that

the frivolous bar to all immigration relief did not include

withholding of removal.

All citations to INA sections will initially include their

corresponding United States Code sections. Theteafter; they will be

referred to only by their INA numbers.

* As the petitioner applied for asylum long before the enactment of the

REAL ID Act of 2005, H.R. 1268. 109th Cong. (2005) (enacted). Pub.

L. No. 109-13, Div. B.. 119 Stat. 231. the pre-RFAL ID Act

provisions of the INA apply to this case.

3

Because of the severe consequences of a finding of

frivolousness under INA § 208(d)(6), the implementing

federal regulation, § C.F.R. § 208.20 (2000), prescribes

the parameters within which an Immigration Judge (“IJ”)

or the BIA must operate in making these decisions:

For applications filed on or after April 1, 1997, an

applicant is subject to the provisions of section

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 knowingly

filed a frivolous asylum application. For purposes

of this section, an asylum application 1s frivolous if

any of its material elements is deliberately

fabricated. Such finding shall only be made if the

immigration judge or the Board 1s 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.

For purposes of this section, a finding that an alien

filed a frivolous asylum application shall not

preclude the alien from seeking withholding of

removal.

STATEMENT

This case presents the important and recurring

compound question of 1) what comprehensive ~ and

uniform standard should be used by an Immigration Judge

(“IJ”) or the BIA when making a frivolous finding, and 2)

at which point in time should the applicant’s knowledge

be evaluated regarding the frivolous finding. This Court

has not yet reviewed a frivolous finding nor the standards

employed by immigration judges in making such findings.

4

Further, the BIA has not issued a definitive opinion on this

issue.

Only 12 published cases have ever been decided by the

respective courts of appeals regarding frivolous findings.

Although these decisions have begun to formulate three

elements of frivolous findings derived from the federal

regulation, these elements ignore the clear mandate in the

statute and the regulation that the applicant know her

application 1s frivolous at the time she files her

application. Without clear direction regarding the timing

of the applicant’s knowledge and the uniform standard to

be imposed, the factfinder has infinite discretion in

making frivolous findings. This lack of proper standard

and resultant gross discretion has handicapped the courts

of appeals’ ability to engage in fair and serious review.

Further, the courts of appeals have differed widely in

their approaches to this issue, and such disparate courses

of action and ad hoc review of frivolous findings have

caused a significant circuit split on this important and

widely applicable issue.

In the 12 published court of appeals cases addressing

frivolous findings, five have overturned such findings

while seven have upheld the findings. In the five cases

that vacated the frivolous finding and/or remanded

proceedings, such occurred because |) the applicant was

not given a sufficient opportunity to address the issues

identified in support of the frivolous finding;* 2) the only

* See Farah y. Ashcroft. 348 F.3d 1153 (9th Cir. 2003): see also

Alexandroy \.. Gonzales, 442 F.3d 395 (6th Cir. 2006): Muhanna v.

Gonzales. 399 F.3d $83 (3rd Cir. 2005).

evidence supporting the frivolous finding was an adverse

credibility finding. and such was not sufficient;> 3)

consular determination that documents were fraudulent

was based on unreliable and incredible hearsay;° and 4)

evidence consisting of a flawed adverse c. edibility finding

and a suggestion of fraud was not enough to conclusively

determine that the applicant knew the application was

false.

In six of the seven decisions upholding the frivolous

finding, tangible, credible, and undemiable evidence

established the falsity of a material element of the asylum

application. Such evidence consisted of 1) the applicant

admitting that he/she lied on the asylum application and to

the IJ;° 2) dental records conclusively contradicted

applicant’s stated age; 3) a copy of newspaper from

Library of C ongress conclusively showed applicant’s copy

was a forgery;'’ and 4) a medical record determined to be

fraudulent by issuing hospital.'’ In the seventh case, and

: See Scheerer vy. U.S. Attorney General, 445 F.3d 1311 (11th Cir.

2006), Mulia v. Guuzales, 399 F.3d 583, (3rd Cir. 2005).

"See Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006).

* See Liu v. U.S. Dept. of Justice, 455 F.3d 106 (2nd Cir. 2006).

* See Barreto-Claro v. U.S. Attomey General, 275 F.3d 1334 (11th

Cir. 2001); see also Aziz v. Gonzales, 478 F.3d 854 (8th Cir. 2007);

Kifleyesus v. Gonzales, 462 F.3d 937 (8th Cir. 2006).

” Sce Efe v. Ashcroft. 293 F.3d 899 (Sth Cir. 2002).

’ See Selami +. Gonzales. 423 F.3d 621 (6th Cir. 2005).

' See Ignatova y. Gonzales, 430 F.3d 1209 (8th Cir. 2005).

6

in direct contradiction to the Second circuit and to a case

within its same circuit, the Sixth circuit upheld a frivolous

finding based on solely on a consular determination that

documents were fraudulent.”

Two circuit splits have arisen directly because there is

no definitive standard or opinion on frivolous findings

from the BIA or this Court. First, the Second Circuit and

the Ninth Circuit, in closely analogous cases, have dealt

with the fact that there is no definitive standard in wholly

opposite ways. Second. the circuit courts are irrevocably

split regarding consular determinations of alleged fraud

and whether such unreliable decisions alone are sufficient

to support a frivolous finding.

Finally, and to compound the adverse effect of this

circuit split on the petitioner’s specific situation, the lower

decision reveals a gross departure from the accepted and

usual course of judicial proceedings. When faced with an

unclear and inconsistent BIA decision that specifically

vacated Judge Warren’s biased comment “you don’t look

Jewish,” yet summarily affirmed the remainder of the

decision without reaching the issue of frivolousness, the

reviewing court should have remanded for a new BIA

decision. In the alternative, and at the very least, the court

should have heard oral argument because this case

presents such complex and = serious issues. By

streamlining its review, and in fact by engaging in review

at all of the BIA’s inconsistent decision, the court

abdicated its review duties and perpetuated the biased and

unconstitutional handling of petitioner’s case.

Because this circuit split will not be resolved absent

this Court’s intervention, because this issue greatly affects

the lives of countless asylum applicants, and because the

Ninth Circuit’s decision in this case in plainly wrong,

review by this Court is necessary and warranted.

A. Statutory Background

Prior to 1997, the INA did not include provisions

regarding frivolous findings. However, when Congress

engaged in a comprehensive overhaul of immigration law

by enacting IRRIRA in 1996, it added a provision forever

barring an asylum applicant from immigration relief if she

was found to have filed a frivolous asylum application.

The statutory language, although not explicit in defining

“frivolous,” clearly intends that an asylum application

may only be found to be frivolous if the applicant knew

the application was false at the time it was filed. INA §

208(d)(6).

Because Congress did not define “frivolous

application,” the implementing regulation defined such as

meaning when any material element is deliberately

fabricated. § 208.20. The regulation also clarifies

congressional intent on when the material element must

have been deliberately fabricated. An application ts

frivolous only if the applicant deliberately fabricated a

material element at the time of filing the application. Id.

(emphasis added).

B. Factual Background

Petitioner Nadezhda Ursini (‘petitioner’) fled Russia

and sought asylum relief in the United States because of

severe persecution suffered in Russia on account of her

Jewish nationality and ethnicity. Petitioner suffered

severe discrimination throughout her childhood from her

classmates, their parents, and her teachers. As petitioner

grew older, such animosity manifested itself in the form of

physical violence and threats. For example, during

college, petitioner was thrown out of her second floor

dormitory window by the dorm manager and classmates

who had been taunting her earlier that evening because she

is Jewish._ Petitioner suffered a brain concussion, a bone

fracture in her hand, and a broken ankle. She was in the

hospital for two weeks recovering from these injuries.

When petitioner began working, she continued to have

problems. She was followed and received threatening

telephone calls. In 1996, two assailants attacked her at the

entrance of her apartment building. They beat her with a

metal bar and kicked her until she lost consciousness.

They yelled that Hitler was right and “kikes” should be

dead. Petitioner believes these attackers were part of

PAMYAT, a nationalistic group that persecutes Jews.

This group had made threatening telephone calls to

petitioner in the past. When petitioner was released from

the hospital after one week, she immediately moved to

Moscow to avoid more attacks.

In 1998, two individuals approached petitioner, saying

they represent the Russian people and that Jews should not

live in Moscow. They threatened that if she did not leave

immediately, they would kill her. That night, arsonists set

her car on fire. Petitioner did not witness the actual crime,

but because of the close proximity of the arson with the

death threats, she reasonably believed the same two anti-

Semitic people torched her car.

9

Petitioner immediately moved to a new apartment.

She hoped this move would save her from further

persecution and death, but she knew she would continue to

be persecuted because she is Jewish. Petitioner made

plans to flee Russia, and she came to the United States to

seek asylum.

C. Proceedings Below

Petitioner applied for asylum, withholding of removal,

and withholding under the Convention Against Torture

(“CAT”) within three months of entering the United

States. While her application was pending, she was placed

in removal proceedings, and she renewed her application.

Petitioner’s individual hearing commenced on August 30,

2000, and concluded on October 17, 2002, when Judge

Warren found. petitioner not credible, denied her

application for relief, and-ordered her removed to Russia.

The next day, Judge Warren realized that he had forgotten

to include a frivolous finding in his oral decision. He then

dictated an additional paragraph to his oral decision.

Three months later, Judge Ho!’ added a handwritten, post-

script to the order forever barring petitioner from any and

all immigration relief.

Petitioner timely appealed to the BIA. The BIA

specifically vacated the Immigration Judge’s outlandish

statement that petitioner “did not look Jewish.” Despite

vacating this biased statement and Judge Warren’s

reliance on such in his adverse credibility finding, the BIA

nonetheless summarily affirmed Judge Warren's decision

- without reaching the frivolous finding.

Bo

See fn. 1, supra.

10

Petitioner timely filed a petition for review with the

Ninth Circuit Court of Appeals.'* After extensive briefing

supported by Ninth Circuit case law, petitioner’s case was

scheduled for oral argument on October 23, 2006. Less

than one week before the scheduled argument, the panel

decided the case was suitable for decision without

argument. On November 7, 2006, the panel dismissed the

petition for review affirming both the adverse credibility

finding and the post-script handwritten frivolous finding.

Petitioner timely filed a petition for rehearing and

suggestion for rehearing en banc, identifying a circuit split

between the Ninth and Second circuits and highlighting

the legal and factual errors in the panel’s decision. On

January 19, 2007, the panel denied the petition for

rchearing.

REASONS FOR GRANTING THE PETITION

A. A Uniform Standard That Properly Embodies

The Frivolous Finding Statute And Regulation

Is Required To Ensure Essential Oversight

And National Uniformity.

When Congress added provisions to the INA in 1996

that permitted frivolous findings, 1 did not define

“frivolous application. Nonetheless, because of the severe

consequences of such a finding, Congress intended that

such findings only be made when the applicant knowingly

makes a frivolous applicant. INA § 208(d)(6).

43 PRY : , = ‘ ‘

'* Petitioner retained undersigned counsel to assist her with her

petition for review. While bricfing was being filed. petitioner's

former counsel was suspended from the practice of law and was

subsequently disbarred.

11

When the corresponding federal regulation was

propounded, it too recognized the serious consequences of

a frivolous finding and undertook to define “frivolous

application” and “knowingly made” so as to provide

parameters within which an IJ and the BIA must operate

in making such determinations. Thus, the regulation

defines “frivolous application” as meaning when “any

material clement is deliberately fabricated.” 8 C.F.R. §

208.20. Although this definition is arguably quite broad,

the overall applicability of this provision is narrowed by

defining when an application is “knowingly made.” The

regulation requires that the applicant knowingly file an

application in which any material element is deliberately

fabricated (emphasis added). As such, a frivolous finding

should cnly flow from a finding that an applicant

deliberately fabricated a material element in the asylum

application at the time of filing said application.

Thus, in making a frivolous finding, the factfinder

must find that the applicant 1) deliberately fabricated, 2)

any material clement, 3) at the time of filing the asylum

application. A fourth requirement, procedural in nature,

requires that the applicant have sufficient opportunity to

address the identified reasons for the frivolous finding.

To date, neither this Court nor the BIA have

specifically addressed the law relevant to frivolous

findings or the standards to be imposed on the factfinder.

Without any guidance, Js have been given immense

discretion to make damaging frivolous findings. Because

of the severity of the consequences of a frivolous finding,

unfettered discretion was not intended to be given to the

factfinder. Yet, without a uniform standard that

implements all safeguarding elements of the statute and

12

regulation, such discretion and resultant ad hoc application

of frivolous findings have created biased bars to relief and

dangerous precedent.

As challenges to frivolous findings have made their

way to appellate review, the respective courts of appeals

have also dealt with such findings in an ad hoc fashion

because they too are operating without a definitive,

uniform standard. Several decisions have formulated

three elements to frivolous findings: 1) deliberate

fabrication, 2) of any material element. 3) so long as the

applicant has sufficient opportunity to address reasons

identified in support of the frivolous finding. See Liu, 455

F.3d at 113. Clearly ignored by the appellate decisions is

the fact that the deliberate fabrication must occur when the

application is filed.'” Without this added safeguard, which

requires that the applicant’s knowledge be evaluated at the

time the application 1s filed, the reach of INA § 208(d)(6)

is much broader than intended by Congress and the

implementing regulation.

Without a definitive decision by either this Court or

the BIA regarding the proper standard to be imposed on

factfinders in making frivolous findings, the Immigration

Courts and the Courts of Appeal will continue to struggle

with frivolous findings, will continue to impose such

findings and review such findings in an ad hoc fashion,

and will continue to perpetuate the circuit split that has

already emerged from the courts’ standardless decisions.

'" In fact. only one decision by a court of appeals, unpublished at that.

identifies the requirement that the applicant know, at the time of

filing, that a material aspect of her claim was untrue. See Lin v.

Ashcroft, 83 Fed. Appx. 480 (3rd Cir. 2003).

13

B. The Federal Courts Of Appeal Are

Irreconcilably Split On Several Issues

Relevant To Frivolous Findings.

There can be no doubt that the federal courts of

appeals are deeply and avowedly split on the questions

presented by this petition, and that this circuit split, in

light of the lack of agency direction or opinion, merits

resolution by this Court. In fact, at least two circuit splits

have arisen in the published opinions addressing frivolous

findings. Both splits stem from the courts’ ad hoc

application of the statute and implementing regulation

resulting in inconsistent review, especially where the

evidence in support of the findings do not provide a clear

answer as to the correct outcome.

Although the courts have begun to formulate a small

body of case law on 1) what clearly does not constitute

sufficient evidence to support a frivolous finding'® and 2)

what clearly constitutes sufficient evidence to support a

frivolous finding,'’ no court has been able to review

frivolous findings with the assistance and guidance of a

'© Three circuits have held that an adverse credibility finding alone is

insufficient to support a frivolous finding. See Liu v. U.S. Dept. of

Justice, 455 F.3d 106 (2nd Cir. 2006); Scheerer v. U.S. Attorney

General, 445 F.3d 1311 (11th Cir. 2006); Muhanna v. Gonzales, 399

F.3d 583, (3rd Cir. 2005).

'" Six decisions in four circuits have only upheld a frivolous finding

when clear, tangible, and credible evidence conclusively established

that an applicant lied and/or engaged in deliberate fabrication. See

Aziz_v. Gonzales, 478 F.3d 854 (8th Cir. 2007); Kifleyesus_v.

Gonzales, 462 F.3d 937 (8th Cir. 2006); Stami v. Gonzales _, 423 F.3d

621 (6th Cir. 2005); Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir.

2005): Efe v. Ashcroft. 293 F.3d 899 (Sth Cir. 2002); Barreto-Claro v.

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

14

definitive, uniform standard. Without such a standard, the

courts have engaged in ad hoc reviews of frivolous

findings, creating circuit splits on two significant issues.

First, the Second Circuit and the Ninth Circuit have

dealt with the fact that there is no definitive standard in

wholly opposite ways. In Liu, the Second Circuit, dealing

with an issue of first impression in its circuit, properly

remanded to the BIA so that it could decide, in the first

instance. the meaning of “knowingly” and “material

element.” 455 F.3d at 116.

Conversely, the Ninth Circuit, when faced with a

factually analogous case to Liu and the lack of definitive

standard from its own precedent,'* the BIA, or this Court,

nonetheless chose to review the frivolous finding instead

of remanding for a clear agency decision in the first

instance. The Ninth Circuit took such action in

petitioner’s case.

Both cases involved a flawed adverse credibility

finding and questionable evidence of fraud. On _ the

spectrum of “sufficient evidence to support a frivolous

finding,” both cases fell in the middle between mere

adverse credibility findings on the one hand (insufficient)

'* Only two published cases in the Ninth Circuit address a frivolous

finding. The first vacated the finding on procedural grounds, namely

no Opportunity to address the reasons for the finding. See Farah, 348

F.3d at 1158. The second decided an issue regarding the applicability

of the frivolous provision when an application filed prior to IRRIRA

was renewed after the amendments went into effect. See Almaghzar

v. Gonzales, 450 F.3d 415 (9th Cir. 2006). Neither case discusses the

frivolous finding requirements nor facts and evidence which might

meet those requirements.

and tangible, credible evidence on the other (sufficient).

In light of INS _v. Ventura, 537 U.S. 12 (2002), and

insufficient agency attention to the issue at hand, the

courts of appeals must remand to the agency so that the

BIA has the opportunity to decide an issue in the first

instance. The Second Circuit properly followed this

mandate. The Ninth Circuit did not, and its error has

severely prejudiced not only petitioner’s case but also the

cases of all subsequent asylum applicants involving

frivolous findings. The completely inapposite handling of

closely analogous cases requires the attention of and

decision by this Court.

Second, the circuit courts are irrevocably split

regarding consular determinations of alleged fraud. The

Third Circuit has held that unreliable, hearsay-laden

consular determinations of forged documents do not

support a frivolous finding. See Alexandrov, 442 F.3d at

407. Conversely, the Sixth Circuit has upheld a frivolous

finding based solely on a consular determination of fraud.

See Sterkaj, 439 F.3d at 279. The Ninth Circuit, in

petitioner’s case, has also held that a _ consular

determination of fraud alone supports a_ frivolous

finding.'”

The two circuits upholding a frivolous finding based

solely on consular determinations of alleged fraud

contradict not only the Third Circuit’s decision on point

but also contradict every other published case that has

upheld a frivolous finding. In these six other cases, the

‘ The administrative record in the instant case is filled with

unreliable, uncorroborated, and unauthenticated hearsay in the

consular determinations used to support the alleged fraud.

16

frivolous findings were upheld because clear, tangible, and

credible evidence of lying or falsity supported the

finding.”°

Consular determinations have been debunked by

experts for several reasons: unreliable hearsay, double

hearsay, inherent unreliability, lack of opportunity to

cross-examine, nondisclosure of investigators and their

methods, and official fraud and corruption. They are too

intangible to be used as sole support of frivolous findings

and their attendant severe and permanent consequences.

in light of this significant and important circuit split,

this Court and/or the BIA must step in and conclusively

decide how much conclusive and credible evidence of

fraud/deliberate fabrication must be in the record to

support a frivolous finding.

C. Review Is Also Warranted Because The

Decision Below Is Clearly Incorrect And

Reveals The Panel’s Gross Departure From

Usual Judicial Proceedings.

This Court’s review of the lower court’s decision ts

also necessary because the Ninth Circuit plainly erred in

not only its handling of petitioner’s case but also in its

legally and factually erroneous decision. The court's

procedural errors constitute a fundamental

” Such evidence consisted of 1) the applicant admitting that he she

lied on the asylum application and to the IJ; 2) dental records

conclusively contradicted applicant’s stated age; 3) a copy of

newspaper from Library of Congress conclusively showed applicant's

copy was a forgery: and 4) a medical record determined to be

fraudulent by issuing hospital.

17

misunderstanding of its duty as a judicial entity of last

review by right. These errors, which involve a

streamlined review of petitioner's appeal, will have

profound effects on many, if not all, subsequent asylum

cases pending in the Ninth Circuit. The Ninth Circuit’s

gross departure from the accepted and usual course of

judicial proceedings constitutes an issue of grave

importance that warrants this Court's review, especially in

light of the serious and dire consequences at issue in

petitioner’s case.

1. The Ninth Circuit's “streamlining” in a case of

this magnitude is a gross departure from the

usual course of judicial proceedings.

As discussed above, the consequences of a frivolous

finding are serious and dire. Such consequences become

even more severe when the decision implementing them

and those upholding them are fraught with errors and bias.

Consequences of this magnitude require full and impartial

judicial review. The Ninth Circuit’s “streamlining”

approach to the petitioner’s petition for review denied her

full and impartial judicial review and constituted a gross

departure from the accepted and usual course of judicial

proceedings.

The petitioner’s asylum case, encompassing removal

proceedings and her appeals, is one of significant

magnitude. Her merits hearings alone spanned over two

years, and the administrative records comprises 747 pages.

Several related findings and holdings are at issue: a

biased Judge Warren, an unsupported adverse credibility

finding, establishment of past persecution and

presumption of future persecution, fear of future

18

persecution, and Judge Warren’s latent frivolous

finding/Judge Ho’s handwritten, post-script frivolous

order. Although the court had extensive briefing before it,

it properly recognized that oral argument would provide

necessary and beneficial exposition of these important

issues. Oral argument was scheduled for October 23,

2006.

Thereafter, the panel assigned to this case inexplicably

decided that the case could be decided without oral

argument. This decision was made on October 17, 2006,

less than one week before the oral argument.“' Two

weeks later, the pane! dismissed petitioner’s case in a one

and one-half page, unpublished decision that purported to

address both the adverse credibility finding and the

arbitrary frivolous finding.

This handling of petitioner's case cannot be suffered.

BIA streamlining has been held to be constitutional

precisely because further federal review 1s available. If

the circuit courts are permitted to themselves engage in

streamlines, such action will eliminate this important

safeguard. Such action is even more harmful because of

the senous findings and circumstances at issue in

petitioner's case. The courts of appeal represent the final

review by right for an asylum applicant. If these courts

are permitted to streamline their review of agency findings

and decisions, gross injustice will occur.

*! The exact same procedural! handling was imposed in another case

on which undersigned is an attorney of record. After canceling oral

argument, the Ninth Circuit cursorly dismissed that individual's

appeal. Once is an anomaly. Twice is a coincidence. Any more, and

the Ninth Circuit is streamlining its caseload to the detnment of

asylum applicants.

19

2. The Ninth Circuit's decision to even review the

BIA’s unclear and inconsistent decision that

did not explicitly reach the frivolous finding is

also a gross departure from the usual course of

judicial proceedings.

In her petition for panel rehearing and suggestion for

rehearing en banc, petitioner highlighted as error the fact

that the Ninth Circuit even chose to review the BIA’s

unclear and inconsistent decision. In its decision, the BIA

specifically vacated Judge Warren’s biased statements

regarding petitioner’s appearance and Judge Warren’s

own prejudicial stereotypes—“you don’t look Jewish.”

Nonetheless, the BIA then summarily affirmed the

remainder of Judge Warren’s decision, including the

handwritten, post-script frivolous finding. Although the

BIA recognized Judge Warren’s inherent bias towards

petitioner, it then failed to take the next step and review -

his frivolous finding. These inapposite actions create an

unclear decision. What exactly was the BIA affirming in

light of its disaffirmance of Judge Warren’s biased

statements? The lower court should have recognized the

deficiencies in the BIA’s decision and remanded to the

agency so that it would have the opportunity to reach the

frivolous issue in the first instance. INS v. Ventura, 537

U.S. 12 (2002).

The courts of appeal are reviewing courts. Each

court’s duty is to review the holdings, findings, and the

record within the parameters of applicable standards of

review. If a lower decision is unclear and internally

inconsistent, it is the reviewing court’s duty to remand for

a clear and consistent decision. Without a clear and

20

consistent decision, full and fair review is meaningless and

borders on constitutional violation. Id.

In the instant case, the Ninth Circuit’s review of the

BIA’s unclear and inconsistent decision constitutes a gross

departure from the accepted and usual course of judicial

proceedings. Such departure, and resultant violation of

petitioner's night to full and fair judicial review, warrants

this Court’s review.

3. The Ninth Circuit's decision on the merits

conflicts with decisions in its sister circuits as

well as with its own precedent.

Finally, the Ninth Circuit’s one and one-half page

decision upholding Judge Warren’s adverse credibility

finding and frivolous finding clearly conflicts with its own

precedent as_well as published decisions from its sister

circuits.

Regarding the frivolous finding, two cases from the

Second and Third circuits are closely factually analogous

to the petitioner's case. One case involved documents

found to be fraudulent by consular officials. Alexandrov,

442 F.3d at 397. This determination was based on

unreliable hearsay, and the Third Circuit correctly held

that such consular determination alone was insufficient to

establish that the applicant had knowingly filed a frivolous

asylum application. Id. at 407. Another case involved a

flawed adverse-eredibility finding and a suggestion of

fraud. Liu, 455 F.3d at 115. The Second Circuit,

recognizing that this case presented an issue of first

impression in its circuit, and recognizing the lack of

uniform standard for what constitutes “knowingly” and

2]

“material element,” remanded to the BIA so that the

agency could make a decision in the first instance. Id, at

116.

Despite these factually analogous cases, and despite

the lack of a published decision directly on point within

the Ninth Circuit,’ the lower decision upheld Judge

Warren’s biased and arbitrary frivolous finding based

solely on the consular determination that the arson reports

were fraudulent. As several circuits and experts have

recognized, these consular determinations are fraught with

errors, unreliable bearsay, incredible and unidentified

sources, unidentified investigators, and wnavailability jor

cross-examination. See Alexandrov, 442 F.3d at 404-07.

Despite such unreliability, consular determinations have

become the Achilles heel in countless meritorious claims

for asylum. Permitting these determinations to be the sole

basis for a frivolous finding is ethically wrong and

unconstitutional. The lower court’s decision upholding

Judge Warren’s frivolous finding, based solely on a

consular determination of fraud, conflicts with decisions

in other circuits and defies the intent of the statute and

regulation.

Regarding the adverse credibility finding, the Ninth

Circuit itself has held that a fraudulent document cannot

support an adverse credibility finding if the applicant did

not know it was fraudulent. See Yemaine-Berhe_ v.

Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004) (holding that

an allegedly fraudulent document, even if it went to the

heart of any asylum claim, is not automatically

determinative of an adverse credibility finding). Other

se _ “.

~ See fn. 18, supra.

to

to

circuits have also held that allegedly fraudulent documents

cannot support an adverse credibility finding it the

applicant did not know it was a forgery. See Hanaj v.

Gonzales, 446 F.3d 694, 699 (7th Cir. 2006); Kourski v.

Ashcroft, 355 F.3d 1038, 1039-40 (7th Cir. 2004).

Finally, consular determinations of fraud, when such

unreliable, hearsay determinations are the sole basis for an

adverse credibility finding, have been held to not be

substantial evidence sufficient to support an adverse

credibility finding. See Ezeagwuna v. Ashcroft, 325 F.3d

396 (3rd Cir. 2003). The seminal holding of this case was

specifically identified to the Ninth Circuit. Yet the latter

ignored the Third Circuit’s reasoned analysis vacating on

the issue of credibility and unreliable consular

determinations.

The lower court’s errors of law and fact constitute a

gross departure from the accepted and usual course of

judicial proceedings. Such departure requires review by

this Court to correct the significant errors committed by

the lower court.

D. This Issue Is Of Substantial Practical

Importance And Will Affect Many Asylum

Applicants.

The courts of appeals began reviewing frivolous

findings in 2001. However, over the next four years, the

courts issued only three published decisions on frivolous

findings. That number doubled in 2005, and there have

been six such decisions since then. We can only expect

that number to continue to increase exponentially.

23

Not only will Ws and the BIA continue to make

frivolous findings, but such findings will only become

more commonplace in light of the INA amendments made

in the REAL ID Act of 2005. In this act, Congress

instituted heightened credibility and corroborating

evidence standards and requirements. See INA §

208(b)(1)(B)(iii). Any inconsistency will now result in an

adverse credibility finding. Applicants are also expected

to submit reasonably attainable corroborating evidence.

Such corroborating evidence will likely be sent to the

respective consulates for verification and fraud findings.

Frivolous findings will then ensue.

Without a uniform standard that embodies al] elements

of the statute and implementing regulation, there can be no

hope for national uniformity in issuing and reviewing

frivolous findings. Further, the immigration courts must

be given specific and clear standards within which to

make frivolous findings. Unless such standards are

definitively provided by either this Court or the BIA, the

immigration courts will continue to use their unfettered

discretion is making unsupported and arbitrary frivolous

findings. The courts of appeal. in turn. will be flooded

with cases involving frivolous findings and will continue

to review such findings in an ad hoc fashion. A definite

opinion on the issue of frivolous findings must be issued.

The severe and permanent consequences of such findings

evidence the importance of this issue. This Court must

Step in to provide or remand for a uniform, comprehensive

standard in making and reviewing frivolous findings.

24

CONCLUSION

For the foregoing reasons, the petitioner respectfully

requests that this writ of certiorari be granted.

Respectfully submitted.

DIANA F. CHAMBERLAIN ELENA E. TSIPRIN

Law Offices of Counsel of Record

Elena E. Tsiprin Law Offices of

14670 NE 8th Street, Elena E. Tsiprin

Suite 210 14670 NE Sth Street,

Bellevue, WA 98007 Suite 210

Bellevue, WA 98007

(425) 614-4744

Counsel for Petitioner

APRIL 2007

la

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NADEZHDA URSINI, FILED November 7, 2006

Cathy A. Catterson, Clerk

U.S. Court of Appeals

Petitioner, No. 04-72638

V. INS No. A77-539-697

ALBERTO R. GONZALES, Attorney

General,

Respondent.

MEMORANDUM”

On Petition for Review of an Order of the

Board of Immigration Appeals

“This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except

as provided by 9th Cir. R. 36-3.

2a

Submitted October 23, 2006"

Seattle, Washington

Before: KOZINSKI and FERNANDEZ, Circuit

Judges, and WINMILL,””” District Judge.

1. The WJ correctly found that petitioner lacked

credibility, because she submitted two false documents

that went to the heart of her asylum claim. After

submission of the first false document, petitioner was

afforded an opportunity § to submit additional

documentation. In response, she submitted another

document that the IJ determined to be fraudulent. It was

thus more than “reasonable to infer that a[n applicant]

with a legitimate claim does not usually find it necessary

to invent or fabricate documents in order to establish

asylum eligibility.” Matter of O-D-, 21 L&N. Dec. 1079,

1083 (BIA 1998). Because substantial evidence supports

the adverse credibility finding and no other evidence

submitted compels us to conclude to the contrary, her

asylum claim necessarily fails. eee § U.S.C.

1252(b)(4)(B). Petitioner thus similarly fails to qualify for

ae

This panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P.

34(a)(2).

ee

The Honorable Lynn B. Winmill, Chief United States

District Judge for the District of Idaho, sitting by

designation.

3a

withholding of removal. See Acewicz v.INS, 984-¥.2d

1056, 1062 (9th Cir. 1993).

2. An asylum application may be found frivolous if:

(1) petitioner received notice of the consequences of filing

a frivolous application, 8 U.S.C. 1158(d)(4)(A); (2) “any

of its material elements is deliberately fabricated,” 8

C.F.R. § 208.20; and (3) petitioner was given “an

opportunity to explain any discrepancies in the testimony

before a finding of frivolousness—permanently barring

immigration relief—is entered.” Farah v. Ashcroft, 348

F.3d 1153, 1157 (9th Cir. 2003). Substantial evidence

supports the IJ’s frivolousness finding. First, the record

shows, and Ursini does not dispute, that she was given

notice. Second, the IJ reasonably concluded that the false

documents were material and went to the heart of

petitioner’s claim, because the alleged arson incident was

the tipping point in her decision to leave Russia. Finally,

petitioner was given ample opportunity to respond. She

responded to the first false document by submitting

another false document. When the IJ determined that

petitioner affirmatively submitted a second forged

document, she was given three more weeks to explain the

discrepancy. Because she failed to respond, it was

reasonable for the iJ to conclude that Ursint knowingly

filed a frivolous application.

PETITION DENIED.

4a

U.S. DEPARTMENTOF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

FALLS CHURCH, VIRGINIA 22041

DECISION OF THE BOARD

OF IMMIGRATION APPEALS

File: A77 539 697 — Seattle Date: May 4, 2004

Inre;: NADEZHDA RATMINOVNA URSINI

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Dennis F. Olsen.

Esquire

CHARGE:

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

1227(a)(1)(B)]—In the United States

violation of law

APPLICATION: Asylum, withholding of removal;

Convention Against Torture

Sa

ORDER:

PER CURIAM. The respondent, a citizen of Russia, is

appealing the October 17, 2002, decision of the

Immigration Judge denying her application for asylum and

withholding of removal under sections 208 and 241(b)(3)

of the Immigration and Nationality Act, 8 U,.S.C. §§

1158, 1231 (b)(3), as well as her request for the protection

under the United Nations Convention Against Torture, &

C.F.R. § 1208.16(c). The Department of Homeland

Security (the “DHS,” formerly the Immigration and

Naturalization Service) has not filed an appeal brief.

We adopt and affirm the Immigration Judge’s

decision, except for the Immigration Judge’s statement

made in passing at page 11 of the decision regarding the

respondent’s lack of Jewish “features.” The appeal is

otherwise dismissed. Matter of Burbano, 20 1&N Dec.

872, 874 (BIA 1994) (noting that adoption or affirmance

of a decision 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

[1]mmigration [J]udge articulated in his or her decision’).

Is/

FOR THE BOARD

6a

U.S. DEPARTMENTOF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

UNITED STATES IMMIGRATION COURT |

Seattle, Washington

IN REMOVAL PROCEEDINGS

File: A77539697-Seattle Date: October 17, 2002

In the Matter of NADEZHDA RATMINOVNA URSINI

Respondent

CHARGE: Section 237(a)(1)(B) INA — non-immigrant

who remained longer than permitted.

APPLICATIONS: Section 208(a) INA — asylum;

Section 241(b)(3) INA - withholding of

removal; Relief under Torture

Convention; Section 240B INA-

voluntary departure.

ON BEHALF OF ON BEHALF OF

RESPONDENT: SERVICE:

Dennis F. Olsen Gregory E. Fehlings

Attorney at Law Trial Attorney

2707 Colby Avenue, 1000 2nd Avenue

Suite 901 Suite 2900

Everett. WA 98201 Seattle. WA 98104

Ta

ORAL DECISION OF THE

IMMIGRATION JUDGE

The respondent is a 32-year-old unmarried female.

native and citizen of Russia, who entered the United States

at Seattle, Washington on March 21, 1999 as a Class B-I

non-immigrant visitor authorized to remain until June 20,

1999. She was apprehended by the Immigration and

Naturalization Service on October 23, 1999 accerding to

the Form I-213 prepared by an Immigration agent which is

marked Exhibit 2. The respondent was residing with a

boyfriend, Pavel Vorbievy who was involved in buying

stolen vehicles. The respondent was not indicated to be

involved in any illegal activity, however, it was

determined that she was unlawfully in the United States

and was placed in removal proceedings by the issuance of

a Notice to Appear (NTA) on August 23, 1999.

In proceedings before an Immigration Judge, the

respondent was represented by counsel. She conceded

proper service of the NTA and it was marked Exhibit No.

The factual allegations admitted in the NTA _ were

admitted and the respondent conceded that she was subject

to removal as a non-immigrant who had remained for a

longer time than permitted. The respondent declined to

designate a country for removal if that ever became

necessary, and the Court therefore designates Russia, the

country of her birth and citizenship. -

The respondent expressed fear of persecution if she

must return to Russia and submitted an application for

asylum before the Immigration Judge. It is determined

8a

that she is eligible to apply for asylum under Section

208(a)(2)(B) which establishes a requirement that aliens

apply for asylum within one year of admission. The Court

notes that the application was actually filed a s few days

short, but she had formally stated her intention to apply for

asylum in less than one year and has substantially

complied with the statute 1s the finding of the Court.

The respondent also applied for withholding of

removal and relief under the Convention against Torture.

She is not eligible for voluntary departure because she

arrived Jess than one year before the NTA was issued,

Section 240B(b)(1)(A), and she 1s not taking voluntary

departure at the beginning of the proceeding but rather at

the conclusion of the proceeding.

Other pleadings and evidence were submitted and

marked as follows. Exhibit No. 4 is a response from the

Department of State. The application had been sent to the

Department of State pursuant to 8 C.F.R. 208.11. The

Department of State responded by simply attaching a-copy

of the November 1997 Profile of Asylum Claims and

Country Conditions relating to Russia.

Exhibit No. 5 1s the Immigration Service pre-hearing

statement. This includes news articles, a copy of the

respondent’s Form I-94 showing her admission as a non-

immigrant on page 6, also identification relating to the

respondent on page 7. Pages 8 through 32 are copies from

three different passports. Pages 33 through 43 consist of

the World Fact Book relating to Russia, and page 44 and

forward is the Country Report on Human Rights Practices

relating to Russia for the year 1999 dated February 25,

2000.

9a

Exhibit No. 6 is the respondent’s pre-hearing

statement which includes articles concerning the

respondent’s application for asylum, her hospitalization

records in 1996, a birth certificate, photographs of Russian

fascists and anti-somatic [sic in original] groups in

military dress in Russia and various other articles

concerning right wing factions in Russia, and harassment

of Jews in Russia.

Exhibit No. 7 1s an objection of the Immigration and

Naturalization Service objecting to certain medical] records

submitted by the respondent, certain photographs, and

there was an objection to the translation of two news

articles.

Exhibit No. 8 is a certified copy of a report from a fire

department in Moscow, the Department of State fire

fighting service of the northwest administrative district of

the second regional department of the state fire

supervision, Moscow, Palnernaya Street, 4-A. It indicates

that the certificate confirms that on September 7, 1998, a

fire took place in a Volkswagen automobile on the parking

lot at an address which is indicated. As a result of the fire,

the automobile burned up completely. The most probably

cause for the fire was arson.

Exhibit No. 9 is the Immigration Service supplemental

document which is a copy of the respondent’s original

asylum application. The application which was

adjudicated in these proceedings was marked Exhibit No.

3 but this exhibit is an application prepared by the

respondent earlier and it indicates receipt by the

Immigration Service on June 14, 1999. It appears to have

been signed by the respondent on June 9, 1999.

10a

Exhibit No. 10 is a statement in support of the

respondent’s application signed by Alexander Ravikovich

on behalf of the respondent.

Exhibit No. 11 is an article concerning Alexander

Ravikovich indicating that he is a 40-year-old doctor from

the former Soviet Union who operates the European

Health Center, a Russian style spa out of a 1,000 square

foot strip mall office in the Overlake area in Bellevue,

Washington.

Exhibit No. 12 is a consent of the respondent for the

Immigration Service to investigate the fire report

contained in Exhibit No. 8. This was executed after

completion of testimony in this matter. The proceedings

were delayed for quite some period of time awaiting for

this investigation to be concluded.

Exhibit No. 13 is a memorandum from the Service

attorney indicating that the embassy in Moscow needed

more time in order to make the necessary inquiry.

Exhibit No. 14 is supplemental documentation from

the Immigration Service. This contains an investigative

report from the U.S. Embassy in Moscow. It indicates that

the writer of the report contacted officials from the fire

department including Galina Vasilyevna Druz, head of the

records department. According to these officials, this

document is fraudulent. First, they pointed out that the

location of this fire (Profsoyuznaya) is well outside the

jurisdiction of their department. In addition, the

numbering system (located directly under the date) used

on the document in question has never been used by this

department. Finally, they stated that the signature on this

lla

document is a forgery. Attached [to] the memo is a copy

of the Russian version of the report with certain portions

of the report circled and notations made to explain the

parts of the document to which the report refers.

Following these revelations, the respondent sought

permission from the Court to make further investigations

and obtain further documentation as she did not concede

that the documents was fraudulent, and tndicated that by

getting another document from the fire department, this

confusion could be cleared up. Accordingly, the matter

was continued further for that purpose and the respondent

did obtain another report which purports to be from the

Department of State fire fighting service of the northwest

administrative district of the city of Moscow, 123481

Moscow, Painernaya Street, 4-1. The report indicates that

they confirm that on September 7, 1998, a fire took place

in a Volkswagen vehicle (license numbers omitted)

located at the parking lot at a specified address in

Moscow. As a result of the fire, the automobile burned up

completely. The most probable cause for the fire was

arson.

Upon receipt of Exhibit No. 15, the Service sought

leave to further investigate this report and on September

17, 2002 the Service submitted another report from an

Immigration assistant in the embassy in Moscow. It reads

“on July 25, 2002, a memorandum was received from

Gregory Fehlings, Assistant District Counsel, Office of

the District Counsel, Scattle, Washington, requesting that

INS, Moscow verify a certificate submitted by Nadezhda

Ursini in support of her asylum application. [End

quotation omitted]. This certificate dated December 10,

2001 was purportedly issued by the fire department of the

northwest administrative district located on Palnernaya

Street in Moscow, Russia.

On August 14, 2002, the writer visited this fire

department and spoke to the deputy chief of the

department. According to this official, this document is

fraudulent. First, he pointed out that the signature on the

document is a forgery. Furthermore, he stated that Mr.

Gvozdev was no longer working at the fire department at

the time that the document was purportedly issued. On

receipt of this information, the Court concluded that no

further inquiry need be made into that document and the

Court was satisfied that it was a counterfeit or fraudulent

document.

Testimony was taken in this matter. The first

testimony occurred on August 30, 2000. When the direct

examination was completed, the testimony was concluded

on December 6, 2000. The respondent testified that she is

Jewish, although her internal passport does not say she 1s

Jewish. She indicated that she sometimes celebrated

Jewish holidays but not on a regular basis. When she was

with her father, he opposed the Jewish celebrations since

she was Jewish through her mother’s side of the family.

She indicated that the family moved to Moscow when she

was in the seventh grade in 1985. In 1986, her father was

discharged from the army and taught school. From 1986

through 1988, the respondent lived in St. Petersburg and

during that time she would attend synagogue with her

mother. In 1989, her father died. That same year the

respondent began attending Tevr University. She

descnbed in some detail the manner in which she was

rudely and poorly treated at the school. The most severe

and dramatic which she described involved a man by the

l3a

name of Bilov who she stated was especially hateful

towards Jewish people, and on one occasion when she was

in her room, he and his roommates came into her room

and threw her out of the window where she landed on hard

packed snow and was_ injured. This required

hospitalization. In June 1994, she graduated from the

university and started working as an accountant in July of

the same year. In November 1995, she began getting calls

and threats from people who were aware that she was

Jewish and wanted her to leave the neighborhood.

However, she was not harmed during this period of time.

In August of 1996, she made a trip to the United States

and remained about ten days. She then returned to Russia

and in November of 1996, she was attached and severely

beaten which resulted in hospitalization for her according

to her testimony. A report of this is contained in Exhibit 6

on page 11.

In September 1997, the respondent made a second trip

to the United States and remained approximately two

weeks. She then returned to Russia where she lived

without incident until July 1998 when she made a third

trip to the United States. Upon her return to Russia in

September 1998, some people visited her and told her to

leave the neighborhood or they would kill her. The

incident concerning the arson of her car allegedly occurred

in July of 1998. It was her testimony that her car was

burned by anti-sematic people and that was why she

submitted the report contained in Exhibit No.8. Her last

arrival in the United States was on March 21, 1999.

Aiiens who seek asylum and withholding of removal

bear the burden of establishing eligibility under Sections

208(a) and 241(b)(3) of the Act respectively. To establish

l4a

eligibility for withholding of removal, an alien's facts

must show a clear probability of persecution in the country

designated for removal on account of race, religion,

nationality, membership in a particular social group, or

political opinion. The clear probability standard requires a

showing that it is more likely than not that an alien would

be subject to persecution if returned to the country from

which she seeks withholding of removal.

The burden of proof required to establish eligibility for

asylum is lower than that required for withholding of

removal. An applicant for asylum has established that her

fear is well-founded if she shows that a reasonable person

may well fear persecution even where the likelihood is

significantly less than clearly probable but there must be a

reasonable possibility of actually suffering such

persecution. Therefore, the applicant must show that a

fear of persecution is both subjective{ly] genuine and

objectively reasonable.

The objective component requires a showing by

credible, direct, and specific evidence in the record of

facts that would support a reasonable fear that the

applicant faces persecution based on one of the five

grounds alleged.

To be granted withholding of removal to a country

under the Convention against Torture, she must show that

it is more likely than not that she would be tortured in that

country. For an act to be considered torture, it must be an

extreme form of crucl and inhuman treatment which

causes severe physical or mental pain and suffering and

must be so intended. Torture must be inflicted by or at the

instigation of a public official or someone acting in an

official capacity or with the consent or acquiescence of

such an official.

The alien bears the evidentiary burden of proof and

persuasion. The facts underlying the claim must be

established by a preponderance of credible, probative

evidence. An alien’s own testimony without corroborative

evidence may be sufficient proof if the testimony is

believable, consistent, and sufficiently detailed to provide

a plausible and coherent account of the basis for her fear

of persecution. ‘

- A witness’s testimony may be discredited for a variety

of reasons. For instance, there may be other facts of

record which cast a doubt on the claim or the claim may

be internally inconsistent and may lack the ring of truth.

Testimony may be discredited by the witness’s demeanor,

by contradictory evidence or by inherent improbability, or

because the witness has an admitted history of dishonesty.

In the instant case, the Court has concluded that the

respondent ts not credible. Initially, before learning of the

counterfeit document, the Court only had some suspicions

as to her lack of credibility. For example, the fact that it

seemed very unusual that people were always able to find

out that she was Jewish considering she had an Italian last

name and she did not have any features that would suggest

that she was Jewish to the extent that that 1s possible to

detect from visual inspection, and her internal passport did

not indicate that she was Jewish. Nonetheless, there was

always a possibility that there were other means of finding

out although it would not [have] been probably from

attending synagogues since she indicated that she rarely

went. One of the aspects that made the Court wonder ts

that many of the problems that she had preceded her trips

l6a

to the United States without ever applying for asylum,

suggesting that she felt no particular peril or that her life

was in danger. She had already been hospitalized at least

twice according to her testimony before the 1997 and 1998

trips to the United States. However, it was the false

documents submitted in support of her claim in the form

of the fire department report that has caused the Court to

conclude that the respondent is not credible. As noted by

the Board of Immigration Appeals in Matter of O-D-, 21

I&N Dec. 1079 (BIA 1998). Quoting from U.S. v.

Strother, 49 F.3d 869 (2nd Cir. 1995), “ordinarily it 1s

reasonable to infer that an innocent person does not

usually find it necessary to invent or fabricate an

explanation or a statement to establish his innocence”.

That quotation is taken from a criminal case which refers

to guilt and innocence but the same principle applies here.

If an asylum applicant is proceeding in good faith, there

should be no reason to submit even one false document

much less two. The Court, therefore, finds that the

respondent has submitted a fraudulent document in

support of her application with the intention of deceiving

the Court. She is, therefore, found not to be credible and it

has been determined by this Court that her application

lacks veracity. An application which lacks veracity cannot

satisfy the burdens of proof and persuasion necessary to

demonstrate eligibility for asylum and related relief. See 8

C.F.R. 208.13(a), 208.16(b); Demirovsky v. INS, 39 F. 3d

177 (7th Cir. 1994); see also Matter of Mogharrabi, 19

I&N Dec. 439 (BIA 1987).

Accordingly the Court finds that the respondent has

not met her burden of establishing that she has a well-

founded fear of persecution for purposes of asylum or that

there is a clear probability that she would be persecuted

17a

for purposes of withholding of removal or relief under the

Torture Convention.

Accordingly, the applications will be denied. As

previously stated, the respondent is not eligible for

voluntary departure because she had not been physically

present in the United States for a period of one year at the

time that the NTA was issued. Accordingly, the voluntary

departure cannot be granted.

The Court has further concluded that the respondent

deliberately tried to deceive the Court by offering into

evidence two false documents for the purpose of

convincing the Court that her car had been burned by her

alleged tormentors in Russia, and the Court concludes that

because of her attempt to deceive the Court through this

false document, her application must be deemed as

frivolous and the Court, accordingly, so finds. The

respondent was warmed at the outset of the consequences

for filing a frivolous asylum claim.

The following orders will, therefore, be entered:

ORDERS

IT IS HEREBY ORDERED that the respondent’s

application for asylum is denied.

IT IS FURTHER ORDERED that the respondent's

application for withholding of removal is denied.

IT IS FURTHER ORDERED that the respondent's

application for relief under the Convention against Torture

is denied.

l&a

IT IS FURTHER ORDERED that the respondent be

removed from the United States to Russia on the charge

contained in the NTA.

IT IS FURTHER ORDERED that the respondent be

barred forever from seeking any relief under the

Immigration + Nationality Act for filing a frivolous

asylum application. KW by AH 1-9-03 (Handwritten post-

script)

[Signed] Kendall Warren by lJ Anna Ho

KENDALL WARREN

U.S. Immigration Judge

A77 539 697 October 17, 2002

19a

U.S. Department of Justice

Executive Office for Immigration Review

Office of the Immigration Judge

IN REMOVAL PROCEEDINGS

File: A 77 539 697

In the Matter of

Nadezhda Ratminovna URSINI

Respondent

ORDER OF THE

IMMIGRATION JUDGE

Yesterday, before entering the Court’s oral decision,

the undersigned advised the parties that he intended to

make a finding that the asylum claim was frivolous,

pursuant to § 208(d)(6). In the oral decision, however, the

undersigned forgot to mention it, which was merely an

oversight, not a deliberate omission. After the parties left,

the undersigned rernembered this finding and dictated it

into the decision, so that it will be included in the oral

decision when it is transcribed.

20a

If either party x objects to the inclusion of xxxxx this

additional paragraph after the parties had left, they may

notify the Court within 5 days (no later than October 25,

2002), and the matter will be reconvened. The Court will

then reopen the matter on it’s [sic] ows motion and dictate

the paragraph in the presence of the partics. If no

objection is received, the paragraph, in which the finding

is made under § 208(d)(6) will remain in the decision as a

part of it, and will be deemed to have been properly

included in the decision, per consent of the parties.

It is so ordered

Date: __ 10-18-02

Place: Seattle, WA /s/

(Immigration Judge)

1 RECORD FILE COPY Form EOQIR-23

Mar. 84

2la

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NADEZHDA URSINI, FILED January 19, 2007

Cathy A. Catterson, Clerk

U.S. Court of Appeals

Petitioner, No: 04-72638

v. INS No. A77-539-697

ALBERTO R. GONZALES, Attorney

General,

Respondent.

ORDER

Betore KOZINSKI and FERNANDEZ, Circuit

Judges, and WINMILL, District Judge.

The petition for rehearing and rehearing en banc is

DENIED. Sce Fed. R. App. P. 35; Fed. R. App. P. 40.

The Honorable Lynn B. Winmill, Chief United States

Distnct Judge for the District of Idaho, sitting by

designation.