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Seventh Circuit puts it bluntly on asylum form advisals

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Seventh Circuit puts it bluntly on asylum form advisals

  1. 1. Seventh Circuit Puts It Bluntly On Asylum Form Advisals By Joseph P. Whalen (October 1, 2012)“If it was not a holding then, it becomes a holding now.” So sayeth theSeventh Circuit in Pavlov v. Holder, __ F. 3d __ (7th Cir. 2012) [No.11-3384 October 1, 2012]. Just what were they being so blunt about?The Seventh Circuit was joining with the Ninth and Tenth Circuits whiledigtinguishing one of its own prior decisions to clearly identify a significantpoint made therein to be forever more an affirmative precedential holding.For the Ninth Circuit, it was from their September 6, 2012, Precedent,Cheema v. Holder, __F. 3d___ (9th Cir. 2012) [No. 08-72451], thataddressed what it described as an “issue of first impression” and foundfor the government. Precisely what pray tell, was this question that hadbeen so elusive until this late date? Read on... “...In this case, we must decide, as an issue of first impression in this circuit, whether the written advisals provided on the standard I–589 asylum application form constitute sufficient notice under 8 U.S.C. § 1158(d)(4)(A).” At 10720.The challenge and the answer were summed as follows: “... Cheema contends that because the advisals are inadequate, the IJ erred in finding that he filed a frivolous asylum application, and therefore he should not be permanently barred from receiving immigration benefits. Because we conclude that the asylum application form he signed provides sufficient notice under § 1158(d)(4)(A), we deny Cheema’s petition for review.” Id.The Tenth Circuit had previously “conclude[d] that as a matter of law, thewritten notice Mr. Ribas ...[the asylum applicant and petitioner before thatCourt]... received on the asylum form complied with § 1158(d)(4)(A) andprovided him with all the notice to which he was entitled. This being thecase, we may affirm the BIAs finding of adequate notice without the needto determine whether the additional verbal warning provided by the IJ waseffective or sufficient.” Ribas v. Mukasey, 545 F. 3d 922 (10th Cir. 2008). Page 1 of 3
  2. 2. The Seventh Circuit had previously discussed this same subject matter inSiddique v. Mukasey, 547 F. 3d 814 (7th Cir. 2008) [No. 08-1127 (October31, 2008)], when it initially wrote: “An alien who knowingly presents a frivolous application for asylum, after being warned that every representation must be truthful, is “permanently ineligible for any benefits” under the immigration laws. 8 U.S.C. §1158(d)(6). ....”That panel continued on that course and concluded with: “According to Siddique, people regularly lie to the government in Pakistan to get benefits, so he thought that he should proceed in the same fashion in the United States. We need not decide whether Siddique’s latest representation about life in Pakistan is correct (his history does not inspire confidence). Aliens must tell the truth to officials in the United States. The possibility of cultural differences is one reason why Congress directed immigration officials to notify aliens, at the outset of the asylum process, that honesty is essential, and to foreclose remedies under the immigration laws only if an alien tells material lies after being informed about the consequences of frivolous applications. 8 U.S.C. §1158(d)(4)(A), (6). Siddique received the required notice. He chose to disregard the warning and must pay the price of his decision. He should count himself lucky that he has not been prosecuted for perjury. [Emphases Added.] The petition for review is dismissed for want of jurisdiction to the extent that it challenges the IJ’s discretionary decisions and denied to the extent that it contests the permanent bar on any benefit under the immigration laws.”So, getting back to Pavlov, the delectable tidbit tossed out in the beginningof this essay is buried in the following much longer quote: “..... That agency warned Pavlov twice: once in the original application form, and a second time before the interview in May 2006. The warning, set out in 8 C.F.R. §208.9, reads (boldface in original): Page 2 of 3
  3. 3. WARNING: Applicants who are in the United States illegally are subject to removal if their asylum or withholding claims are not granted by an Asylum Officer or an Immigration Judge. Any information provided in completing this application may be used as a basis for the in- stitution of, or as evidence in, removal proceed- ings even if the application is later withdrawn. Applicants determined to have knowingly made a frivolous application for asylum will be perma- nently ineligible for any benefits under the Immigration and Nationality Act. This language complies with the statute and, because it was delivered by the Attorney General’s surrogate, supports disqualification under §1158(d)(6). At least two other courts of appeals have concluded that delivery of this warning in the application itself, or at the time of the interview, suffices. Ribas v. Mukasey, 545 F.3d 922 (10th Cir. 2008); Cheema v. Holder, 2012 U.S. App. LEXIS 18742 (9th Cir. Sept. 6, 2012). This court said the same thing in Siddique v. Mukasey, 547 F.3d 814 (7th Cir. 2008). If it was not a holding then, it becomes a holding now. Practical considerations support applying the statutory text as written. Frivolous applications for asylum require investigation and divert time that could be put to use addressing serious claims by honest applicants. Section 1158(d)(6) is designed to prevent aliens from creating these costs—and helping themselves to additional time in the United States—during the months or years before an immigration judge convenes a hearing.”[Emphases Added.]Now a total of three Circuit Courts of Appeals have found that the AsylumApplication itself constitutes sufficient warning against filing a bogus claim.The last two acknowledgements came in rapid succession less than onemonth apart. It sure took them long enough to acknowledge the obvious.How much longer will it take the remaining Circuits to jump on thisbandwagon? We shall have to wait and see. That’s my two-cents, for now. Page 3 of 3

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