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Cheema v. holder, (no. 08 72451, filed 9-6-12), -_ f.3d ____ (9th cIr. 2012) and progeny

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  • 1. Cheema v. Holder, ___ F.3d _____ (9th Cir. 2012) [No. 08-72451, filed 09-06-2012]http://www.ca9.uscourts.gov/datastore/opinions/2012/09/06/08-72451.pdf FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BALJINDER SINGH CHEEMA,  Petitioner, No. 08-72451 v.  Agency No. A095-592-620 ERIC H. HOLDER Jr., Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 18, 2012—San Francisco, California Filed September 6, 2012 Before: Ferdinand F. Fernandez, Richard A. Paez, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen 10717
  • 2. CHEEMA v. HOLDER 10719 COUNSELRobert Bradford Jobe, Esq., Law Offices of Robert B. Jobe,San Francisco, California, for petitioner Baljinder SinghCheema.Stefanie N. Hennes, Dep’t of Just., Washington, DC; ChiefCounsel ICE; Blair O’Connor, Dep’t of Just., Washington,DC; OIL, Dep’t of Just., Washington, DC; Jonathan AaronRobbins, Esq., Dep’t of Just., Washington, DC; Luis E. Perez,
  • 3. 10720 CHEEMA v. HOLDERDep’t of Just., Washington, DC, for respondent, Atty Gen.Eric H. Holder Jr.. OPINIONNGUYEN, Circuit Judge: Petitioner Baljinder Singh Cheema (“Cheema”) admits thathe filed a fabricated asylum application that was supported byfraudulent documents. Cheema nevertheless challenges theimmigration judge’s (“IJ”) finding that he knowingly filed afrivolous application. Under 8 U.S.C. § 1158(d)(6), an asylumapplicant who is determined to have knowingly filed a frivo-lous application is permanently ineligible for immigrationbenefits. In recognition of the severity of this penalty, Con-gress explicitly restricted its application to individuals whoreceived notice of the consequences of filing a frivolousapplication and of the privilege of being represented by coun-sel, pursuant to 8 U.S.C. § 1158(d)(4)(A). In this case, wemust decide, as an issue of first impression in this circuit,whether the written advisals provided on the standard I–589asylum application form constitute sufficient notice under 8U.S.C. § 1158(d)(4)(A). Cheema contends that because theadvisals are inadequate, the IJ erred in finding that he filed afrivolous asylum application, and therefore he should not bepermanently barred from receiving immigration benefits.Because we conclude that the asylum application form hesigned provides sufficient notice under § 1158(d)(4)(A), wedeny Cheema’s petition for review. I. BACKGROUND Cheema, a citizen and native of India, entered the UnitedStates without inspection on May 15, 2002. In August 2002,
  • 4. CHEEMA v. HOLDER 10721Cheema submitted an application, standard form I–589, seek-ing asylum, withholding of removal, and protection under theUnited Nations Convention Against Torture (“CAT”). In hisapplication, Cheema alleged that he was persecuted in Indiabecause of his involvement with the All India Sikh StudentFederation. Specifically, Cheema claimed that he had beenarrested, detained, interrogated, and beaten in April 1997 andSeptember 1999. He further asserted that upon leaving Indiain December 2000, he spent sixteen months in Bahrain andsubsequently entered the United States through Mexico inMay 2002. Cheema signed his asylum application beneath a warningin bold typeface which states: WARNING: . . . Applicants determined to have knowingly made a frivolous application for asy- lum will be permanently ineligible for any bene- fits under the Immigration and Nationality Act. See 208(d)(6) of the Act and 8 CFR 208.20.Directly above the signature line, the form also explained that: Asylum applicants may be represented by counsel. Have you been provided with a list of persons who may be available to assist you, at little or no cost, with your asylum claim?Applicants are then instructed to check a box indicating “yes”or “no.” Cheema checked neither box. Cheema signed his name a second time at the bottom of theform, certifying “under penalty of perjury under the laws ofthe United States of America, that this application and the evi-dence submitted with it are all true and correct.” An inter-preter certified that he prepared the application at Cheema’sdirection and read it to Cheema in Cheema’s native language,
  • 5. 10722 CHEEMA v. HOLDERor a language that Cheema understood, before Cheema signedit. Upon appearing before an asylum officer on November 15,2002, Cheema signed another oath stating that he “under-st[ood] that if [he] filed [his] asylum application on or afterApril 1, 1997, [he] shall be permanently ineligible for anybenefits under the [INA] if [he] knowingly made a frivolousapplication for asylum.” An interpreter certified that the state-ments contained in the oath had been read to Cheema in Pun-jabi, and Cheema indicated that he understood the statements. On May 11, 2005, the Department of Homeland Security(“DHS”) issued Cheema a Notice to Appear, charging himwith removability under Section 212(a)(6)(A)(i) of the Immi-gration and Nationality Act (“INA”), 8 U.S.C.§ 1182(a)(6)(A)(i), for having unlawfully entered the UnitedStates. At the outset of his removal hearing before an IJ,Cheema testified that he read, wrote, and spoke English, thathe had reviewed his application for asylum, and that the appli-cation said “everything [he] want[ed] [the court] to know.”After swearing that the contents of his application were true,he testified that the Indian police harassed, detained, andseverely beat him on two occasions. On cross-examination,however, the government presented documents which calledinto question the veracity of Cheema’s story.1 When con-fronted with the obvious inconsistencies in his narrative,Cheema confessed that he fabricated his entire claim for asy-lum, including the documents supporting his application. 1 The government presented two specific pieces of evidence that contra-dicted Cheema’s testimony: (1) an Indian passport in the name of Bal-jinder Cheema, contradicting Cheema’s testimony that he never obtainedan Indian passport in his own name but rather used a passport in the nameof Ranjit Singh in order to enter Bahrain, and (2) documents from Cana-dian Immigration Services showing that Cheema had lived and applied forasylum in Canada, contradicting his testimony that he was only in Bah-rain, Germany, and Mexico before entering the United States.
  • 6. CHEEMA v. HOLDER 10723 On February 13, 2007, the IJ denied all of Cheema’s claimsfor relief, relying largely on Cheema’s confession that he fab-ricated the application. The IJ found that Cheema had filed afrivolous asylum application for the purpose of obtaining animmigration benefit, in violation of 8 U.S.C. § 1158(d)(6),and was therefore permanently ineligible for relief under theINA. On appeal to the Board of Immigration Appeals (“BIA”),Cheema argued that he did not receive proper notice of theconsequences of knowingly filing a frivolous application andof the privilege of being represented by counsel, as requiredby INA § 208(d)(4)(A), 8 U.S.C. § 1158(d)(4)(A). The BIA,however, affirmed the IJ’s finding of frivolousness and dis-missed Cheema’s appeal. Cheema timely filed a petition forreview with this court. II. STANDARD OF REVIEW We have jurisdiction under 8 U.S.C. § 1252(a) to reviewthe denial of an asylum application when a petitioner raiseslegal questions, or mixed questions of law and fact. Perdomov. Holder, 611 F.3d 662, 665 (9th Cir. 2010). “Where . . . theBIA adopts the IJ’s decision while adding some of its ownreasoning, we review both decisions.” Lopez-Cardona v.Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). While the BIA’sinterpretation and application of immigration laws are gener-ally entitled to deference, see Sinotes-Cruz v. Gonzales, 468F.3d 1190, 1194 (9th Cir. 2006), where its decision is basedon a “purely legal question concerning the meaning of theimmigration laws,” we apply de novo review. Minasyan v.Mukasey, 553 F.3d 1224, 1227 (9th Cir. 2009) (quotingLagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004))(internal quotation marks omitted).
  • 7. 10724 CHEEMA v. HOLDER III. ANALYSIS [1] The statute governing asylum applications, 8 U.S.C.§ 1158, provides: 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.8 U.S.C. § 1158(d)(6).2 Paragraph (4)(A) of subsection (d)articulates what notice must be provided in order for the per-manent bar to become effective. It states: At the time of filing an application for asylum, the Attorney General shall — (A) advise the alien of the privilege of being repre- sented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous appli- cation for asylum[.]Id. § 1158(d)(4)(A). [2] As previously noted, we have yet to squarely addresswhether the advisals on the standard asylum application formprovide adequate notice of the right to be represented bycounsel and of the consequences of knowingly filing a frivo- 2 An asylum application is deemed frivolous “if any of its material ele-ments is deliberately fabricated.” 8 C.F.R. § 1208.20; cf. In re Y-L-, 24 I.& N. Dec. 151, 155 n.1 (BIA 2007) (“In light of the regulatory require-ment that there be evidence of a deliberate fabrication of a material ele-ment of a claim, the term ‘fraudulent’ may be more appropriate than theterm ‘frivolous’ when applied to a questionable asylum application.”).
  • 8. CHEEMA v. HOLDER 10725lous asylum application. Nor has the BIA offered guidance onthis matter. See Yang v. Gonzales, 496 F.3d 268, 275 n.3 (2dCir. 2007) (per curiam) (noting that the BIA had yet to “opineon whether the notice [on the standard asylum applicationform] alone would suffice under the notice requirement”);Luciana v. Att’y Gen. of the U.S., 502 F.3d 273, 281 (3d Cir.2007) (same). We have, however, touched upon the issue before. In Toj-Culpatan v. Holder, we assessed whether an alien demon-strated extraordinary circumstances sufficient to excuse theuntimely filing of his application. 612 F.3d 1088 (9th Cir.2010) (per curiam). In rejecting the petitioner’s contentionthat an asylum application can only be filed in open court, wenoted that the “[standard I-589 asylum] application form itselfprovides the requisite [frivolousness] warnings.” Id. at 1092n.4; see also Khadka v. Holder, 618 F.3d 996, 1006 (9th Cir.2010) (Hall, J., concurring in part and dissenting in part) (not-ing that the petitioner had sufficient notice of the conse-quences of filing a frivolous asylum application based on thewarning provided in the standard I-589 asylum applicationform).3 [3] To date, only one Court of Appeals, the Tenth Circuit,has examined whether the warnings on the standard asylumapplication form provide adequate notice for purposes of trig-gering the penalty in § 1158(d)(6). In Ribas v. Mukasey, itheld that “as a matter of law, . . . the written notice providedon the asylum form is sufficient.” 545 F.3d 922, 930 (10thCir. 2008). Reasoning that the statute does not require anyparticular form of notice, the court concluded that “[t]hewording of this notice [in the asylum application] supplies all 3 We have also previously stated in dicta that the notice must be issuedby an immigration judge. See Chen v. Mukasey, 527 F.3d 935, 940 (9thCir. 2008). However, we do not consider this dicta dispositive, as the issuein Chen was whether subsequent withdrawal of an asylum application barsan IJ from making a finding of frivolousness.
  • 9. 10726 CHEEMA v. HOLDERof the information concerning the consequences of filing afrivolous application to which the alien is entitled under theunambiguous language of § 1158(d)(4)(A).” Id. [4] We join the Tenth Circuit in concluding that the writtenwarning on the asylum application adequately notifies theapplicant of both the consequences of knowingly filing a friv-olous application for asylum as well as the privilege of beingrepresented by counsel, as required by 8 U.S.C.§ 1158(d)(4)(A). The form states in clear, conspicuous, boldlettering on the signature page that “[a]pplicants determinedto have knowingly made a frivolous application for asylumwill be permanently ineligible for any benefits under theImmigration and Nationality Act.” Cheema signed this page,below the bold warning. The form therefore notified Cheemaof the consequences specified by 8 U.S.C. § 1158(d)(6)—permanent ineligibility for any immigration benefits—thatwould attach to the knowing filing of a frivolous asylum applica-tion.4 [5] Similarly, we conclude that the application form ade-quately notified Cheema of the privilege of being representedby counsel. As previously noted, the form states in plain lan-guage that “applicants may be represented by counsel”directly above the signature line. Cheema contends thatbecause he did not check the box indicating whether he hadreceived the “list of persons who may be available to assist. . . with [his] asylum claim[,]” he therefore was not ade-quately advised of his right to counsel. However, theunchecked box means only that Cheema may or may not havereceived a list of legal service providers. It does not mean that 4 Cheema also argues that the notice on the application is inadequatebecause he is not a native English speaker. To the extent Cheema suggeststhat he did not understand the advisals on the form, his contention is beliedby undisputed evidence in the record. Cheema testified before the IJ thathe read, wrote, and spoke English, and his interpreter certified that he pre-pared the asylum application at Cheema’s direction and read it to him inCheema’s native language, or a language that Cheema understood.
  • 10. CHEEMA v. HOLDER 10727he was unaware of his right to counsel, or that the clear state-ment on the form advising him of this right was insufficient. Finally, Cheema argues that the notice must have been pro-vided “[a]t the time of filing an application for asylum[,]”meaning at the time that an alien appears in person before anasylum officer or immigration judge and swears to the truthof his application. The record demonstrates that Cheema did,in fact, receive notice of the consequences of filing a frivolousasylum application when he appeared before an asylum offi-cer on November 15, 2002. Specifically, Cheema signed adocument titled “Record of Applicant’s Oath During an Inter-view,” which stated: I also understand that if I filed my asylum applica- tion on or after April 1, 1997, I shall be permanently ineligible for any benefits under the Immigration and Nationality Act if I knowingly made a frivolous application for asylum.A Punjabi interpreter also signed the document, attesting thathe read this statement to Cheema, and that Cheema indicatedthat he understood. Accordingly, the facts of this case do notsquare with Cheema’s argument. In any event, Cheema fails to identify any legal support forhis position. Not only is his interpretation of the “time of fil-ing” unsupported by the plain meaning of the text, it does notsquare with the governing regulations as they read in 2002.See 8 C.F.R. § 208.4(b)(1)–(2) (1997) (revised July 5, 2009)(directing applicants to file by mail with a regional servicecenter but providing for direct filing with the asylum officeunder certain circumstances). Cheema’s position is furtherundercut by his concession, in his Reply Brief before thiscourt, that the statute does not otherwise require notice to begiven orally by an IJ or asylum officer. See Ribas, 545 F.3dat 929 (“[N]othing in the statute requires that the notice be
  • 11. 10728 CHEEMA v. HOLDERprovided in verbal form or that the consequences of filing afrivolous application be explained in detail to the applicant.”). [6] The notice is on the application itself, which must besigned by the alien, and because the alien is the person whois responsible to determine precisely how and when the appli-cation will be activated by filing, we deem the notice to have,indeed, been given to him at the time of filing. That is true,even if the alien (or his representatives) have chosen to holdthe application for days or months before actually presentingit to the authorities in the proper manner, whether directly orby some other means, such as mail, private package service,or courier. In any of those instances, we are satisfied that thealien did, indeed, receive notice in the manner intended byCongress. Accordingly, we reject Cheema’s contention thatnotice is insufficient unless it is provided at the time of a hear-ing before an IJ or asylum officer. IV. CONCLUSION [7] We hold that, as a matter of law, the written advisalson the I–589 asylum application form provide applicants withadequate notice of the consequences of filing a frivolous asy-lum application and of the privilege of being represented bycounsel, as required by 8 U.S.C. § 1158(d)(4)(A). BecauseCheema received adequate notice under § 1158(d)(4)(A), weaffirm the BIA’s order upholding the IJ’s finding that heknowingly filed a frivolous asylum application. PETITION DENIED.
  • 12. FILED NOT FOR PUBLICATION SEP 06 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUITJASWANT SINGH DOL; KULWINDER No. 08-73598KAUR DOL, Agency Nos. A079-561-227 Petitioners, A079-561-228 v. MEMORANDUM*ERIC H. HOLDER, Jr., Attorney General, Respondent.JASWANT SINGH DOL; KULWINDER No. 09-70257KAUR DOL, Agency Nos. A079-561-227 Petitioners, A079-561-228 v.ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted July 18, 2012 * This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3.
  • 13. San Francisco, CaliforniaBefore: FERNANDEZ, PAEZ, and NGUYEN, Circuit Judges. Jaswant Singh Dol (“Dol”) petitions for review of the Board of ImmigrationAppeals’ (“BIA”) decision adopting and affirming an immigration judge’s (“IJ”)denial of Dol’s application for asylum, withholding of removal, and protectionunder the Convention Against Torture (“CAT”), and the BIA’s denial of Dol’smotion to reconsider. Specifically, Dol challenges the BIA’s decision upholdingthe IJ’s determination that he knowingly filed a frivolous asylum application, andthat he is therefore permanently barred from receiving immigration benefits. Ourjurisdiction is governed by 8 U.S.C. § 1252. Perdomo v. Holder, 611 F.3d 662,665 (9th Cir. 2010). We review de novo the agency’s legal conclusions.Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009). Factual findingsunderlying an IJ’s order are reviewed under the substantial evidence standard. SeeLopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 (9th Cir. 2008). We deny Dol’spetition for review.11 Dol’s wife, Kulwinder Kaur Dol, did not file a separate asylum application. Herclaim is thus dependent upon her husband’s claim. See 8 U.S.C. § 1158(b)(3)(A);see also Kapoor v. Gonzales, 237 F. App’x 257, 258 n.1 (9th Cir. 2007) (derivativeasylum applications of a spouse and children “must rise or fall with that of the leadpetitioner”).
  • 14. 1 Dol admits that he knowingly filed a fabricated application, but argues that 2 he did not receive sufficient notice of the privilege of being represented by counsel 3 and of the consequences of knowingly filing a frivolous application for asylum, as 4 required by 8 U.S.C. § 1158(d)(4)(A). However, for the reasons set forth in our 5 published opinion in Cheema v. Holder, No. 08-72451, filed concurrently with this 6 disposition, we find that the I–589 asylum application form adequately notified 7 Dol of his right to counsel and of the penalty for knowingly filing a frivolous 8 asylum application. 9 Although Dol asserts that a “foreigner with limited English skills such as the10 Petitioner cannot possibly have understood the legal significance of the term11 ‘frivolous[,]’” he testified that he knew his first asylum application was false and12 that “there could be serious consequences to telling material falsehoods at [his]13 asylum interview.” Dol also contends that because his lawyer caused him to falsify14 the asylum application, he therefore should not be held responsible for knowingly15 filing a false application. We have held that a motion based upon ineffective16 assistance of counsel must generally meet the procedural requirements established17 by the BIA in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Castillo-Perez
  • 15. 1 v. INS, 212 F.3d 518, 525 (9th Cir. 2000).2 Here, as the BIA noted, Dol has “not 2 satisfied any of the requirements of Matter of Lozada . . . nor even substantially 3 complied with them.” 4 Likewise, we are unpersuaded by Dol’s assertion that he had Post-Traumatic 5 Stress Disorder and depressive disorders, which affected his memory during the 6 application process and caused him to file the false application. As the BIA 7 reasoned in rejecting this argument, “there is no medical evidence or assertion that 8 these conditions prevented him from making truthful statements about his alleged 9 persecution, or that they caused him to detrimentally rely on poor legal advice.”310 Because Dol failed to establish that it is “more likely than not” that he11 would be tortured if removed, his claim for protection under the CAT also fails. 812 C.F.R. § 1208.16(c)(2); Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010).13 Lastly, Dol challenges the BIA’s denial of his motion to reconsider his14 ineffective assistance of counsel argument. We review a denial of a motion to 2 These procedural requirements require a petitioner to “(1) provide an affidavit describing in detail the agreement with counsel; (2) inform counsel of the allegations and afford counsel an opportunity to respond; and (3) report whether a complaint of ethical or legal violations has been filed with the proper authorities, and if not, why.” Castillo-Perez, 212 F.3d at 525 (citing Matter of Lozada, 19 I. & N. Dec. at 639). 3 Because a finding of frivolousness bars an applicant from relief under the INA, see 8 U.S.C. § 1158(d)(6), we need not decide whether Dol met his burden of demonstrating eligibility for witholding of removal.
  • 16. 1 reconsider for an abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 9722 (9th Cir. 2004), amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th3 Cir. 2005). “Unless the BIA acted arbitrarily, irrationally, or contrary to law, we4 should not disturb its ruling.” Lo v. Ashcroft, 341 F.3d 934, 937 (9th Cir. 2003)5 (citation omitted). Here, the BIA did not abuse its discretion in denying Dol’s6 motion for reconsideration because Dol failed to identify any error in the BIA’s7 prior decision.8 PETITION DENIED.
  • 17. FILED NOT FOR PUBLICATION SEP 06 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUITHARWINDER KAUR, No. 09-70210 Petitioner, Agency No. A097-101-658 v. MEMORANDUM*ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 18, 2012** San Francisco, CaliforniaBefore: FERNANDEZ, PAEZ, and NGUYEN, Circuit Judges. Harwinder Kaur, a native and citizen of India, petitions for review of theBoard of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s(“IJ”) decision denying her application for asylum and withholding of removal, as * This disposition is not appropriate for publication and is not precedentexcept as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decisionwithout oral argument. See Fed. R. App. P. 34(a)(2).
  • 18. well as her petition for relief under Article III of the Convention Against Torture(“CAT”). Kaur also appeals the BIA’s affirmance of the IJ’s finding that she fileda frivolous asylum application, permanently barring her from relief under theImmigration and Nationality Act (“INA”). Our jurisdiction is governed by 8U.S.C. § 1252. Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). We reviewde novo the agency’s legal conclusions. Hamazaspyan v. Holder, 590 F.3d 744,747 (9th Cir. 2009). We deny Kaur’s petition for review. Kaur contends that she should not be permanently barred from receivingINA benefits because she was not properly advised of the consequences of filing afrivolous asylum application, as required by 8 U.S.C. § 1158(d)(4)(A). However,it is undisputed that Kaur signed the standard I–589 asylum application form. Aswe held in Cheema v. Holder, No. 08-72451, filed concurrently with thismemorandum, the conspicuous warning on this form provided Kaur with adequatenotice of the consequences of knowingly filing a frivolous asylum application.Accordingly, because we conclude that Kaur received adequate notice, we upholdthe BIA’s finding of frivolousness.11 Because a finding of frivolousness bars an applicant from relief under the INA,see 8 U.S.C. § 1158(d)(6), we need not decide whether Kaur met her burden ofdemonstrating eligibility for witholding of removal. -2-
  • 19. 1 Kaur also contends that she was denied due process at the removal hearing 2 because the IJ refused to allow her to amend her asylum application. To establish a 3 due process violation, an alien must show that “the proceeding was so 4 fundamentally unfair that the alien was prevented from reasonably presenting his 5 case[.]” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal quotation 6 marks and citation omitted). Additionally, she must also show prejudice. See 7 Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000). These requirements are not met 8 in this case. An IJ has discretion to allow an alien to amend her asylum application 9 at any point after an application has been filed. 8 C.F.R. § 1208.4(c). Here, Kaur10 was given ample time to complete and file an amended application before her11 hearing, but declined to do so until after the government impeached her testimony.12 Therefore, the IJ did not abuse his discretion in denying Kaur’s request to amend13 her application at that point. Further, Kaur has not met her burden of14 demonstrating that an amended application would have affected the outcome of the15 proceedings. See Jacinto, 208 F.3d at 734.16 Because Kaur failed to establish that it is “more likely than not” that she17 would be tortured if removed, her claim for protection under the CAT also fails. 818 C.F.R. § 1208.16(c)(2); Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010).19 Kaur’s challenge to the IJ’s denial of voluntary departure is also -3-
  • 20. 1 unpersuasive. Kaur was statutorily ineligible for voluntary departure, as an alien2 who gave false testimony under oath within the applicable time period. See 83 U.S.C. § 1229c(b)(1)(B); 8 U.S.C. § 1101(f)(6).4 PETITION DENIED. -4-

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