Baljinder Cheema v. Eric H. Holder Jr.

Filing

FILED OPINION (FERDINAND F. FERNANDEZ, RICHARD A. PAEZ and JACQUELINE H. NGUYEN) DENIED. Judge: JHN Authoring. FILED AND ENTERED JUDGMENT. [8311737]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALJINDER SINGH CHEEMA,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.

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
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No. 08-72451
Agency No.
A095-592-620
OPINION

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

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COUNSEL
Robert Bradford Jobe, Esq., Law Offices of Robert B. Jobe,
San Francisco, California, for petitioner Baljinder Singh
Cheema.
Stefanie N. Hennes, Dep’t of Just., Washington, DC; Chief
Counsel ICE; Blair O’Connor, Dep’t of Just., Washington,
DC; OIL, Dep’t of Just., Washington, DC; Jonathan Aaron
Robbins, Esq., Dep’t of Just., Washington, DC; Luis E. Perez,

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CHEEMA v. HOLDER

Dep’t of Just., Washington, DC, for respondent, Atty Gen.
Eric H. Holder Jr..

OPINION
NGUYEN, Circuit Judge:
Petitioner Baljinder Singh Cheema (“Cheema”) admits that
he filed a fabricated asylum application that was supported by
fraudulent documents. Cheema nevertheless challenges the
immigration judge’s (“IJ”) finding that he knowingly filed a
frivolous application. Under 8 U.S.C. § 1158(d)(6), an asylum
applicant who is determined to have knowingly filed a frivolous application is permanently ineligible for immigration
benefits. In recognition of the severity of this penalty, Congress explicitly restricted its application to individuals who
received notice of the consequences of filing a frivolous
application and of the privilege of being represented by counsel, pursuant to 8 U.S.C. § 1158(d)(4)(A). 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). 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.
I.
BACKGROUND
Cheema, a citizen and native of India, entered the United
States without inspection on May 15, 2002. In August 2002,

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Cheema submitted an application, standard form I–589, seeking asylum, withholding of removal, and protection under the
United Nations Convention Against Torture (“CAT”). In his
application, Cheema alleged that he was persecuted in India
because of his involvement with the All India Sikh Student
Federation. Specifically, Cheema claimed that he had been
arrested, detained, interrogated, and beaten in April 1997 and
September 1999. He further asserted that upon leaving India
in December 2000, he spent sixteen months in Bahrain and
subsequently entered the United States through Mexico in
May 2002.
Cheema signed his asylum application beneath a warning
in bold typeface which states:
WARNING: . . . Applicants determined to have
knowingly made a frivolous application for asylum will be permanently ineligible for any benefits 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 the
form, certifying “under penalty of perjury under the laws of
the United States of America, that this application and the evidence submitted with it are all true and correct.” An interpreter certified that he prepared the application at Cheema’s
direction and read it to Cheema in Cheema’s native language,

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or a language that Cheema understood, before Cheema signed
it.
Upon appearing before an asylum officer on November 15,
2002, Cheema signed another oath stating that he “underst[ood] that if [he] filed [his] asylum application on or after
April 1, 1997, [he] shall be permanently ineligible for any
benefits under the [INA] if [he] knowingly made a frivolous
application for asylum.” An interpreter certified that the statements contained in the oath had been read to Cheema in Punjabi, 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 him
with removability under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(A)(i), for having unlawfully entered the United
States. At the outset of his removal hearing before an IJ,
Cheema testified that he read, wrote, and spoke English, that
he had reviewed his application for asylum, and that the application 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, and
severely beat him on two occasions. On cross-examination,
however, the government presented documents which called
into question the veracity of Cheema’s story.1 When confronted with the obvious inconsistencies in his narrative,
Cheema confessed that he fabricated his entire claim for asylum, including the documents supporting his application.
1

The government presented two specific pieces of evidence that contradicted Cheema’s testimony: (1) an Indian passport in the name of Baljinder Cheema, contradicting Cheema’s testimony that he never obtained
an Indian passport in his own name but rather used a passport in the name
of Ranjit Singh in order to enter Bahrain, and (2) documents from Canadian Immigration Services showing that Cheema had lived and applied for
asylum in Canada, contradicting his testimony that he was only in Bahrain, Germany, and Mexico before entering the United States.

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On February 13, 2007, the IJ denied all of Cheema’s claims
for relief, relying largely on Cheema’s confession that he fabricated the application. The IJ found that Cheema had filed a
frivolous asylum application for the purpose of obtaining an
immigration benefit, in violation of 8 U.S.C. § 1158(d)(6),
and was therefore permanently ineligible for relief under the
INA.
On appeal to the Board of Immigration Appeals (“BIA”),
Cheema argued that he did not receive proper notice of the
consequences of knowingly filing a frivolous application and
of the privilege of being represented by counsel, as required
by INA § 208(d)(4)(A), 8 U.S.C. § 1158(d)(4)(A). The BIA,
however, affirmed the IJ’s finding of frivolousness and dismissed Cheema’s appeal. Cheema timely filed a petition for
review with this court.
II.
STANDARD OF REVIEW
We have jurisdiction under 8 U.S.C. § 1252(a) to review
the denial of an asylum application when a petitioner raises
legal questions, or mixed questions of law and fact. Perdomo
v. Holder, 611 F.3d 662, 665 (9th Cir. 2010). “Where . . . the
BIA adopts the IJ’s decision while adding some of its own
reasoning, we review both decisions.” Lopez-Cardona v.
Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). While the BIA’s
interpretation and application of immigration laws are generally entitled to deference, see Sinotes-Cruz v. Gonzales, 468
F.3d 1190, 1194 (9th Cir. 2006), where its decision is based
on a “purely legal question concerning the meaning of the
immigration laws,” we apply de novo review. Minasyan v.
Mukasey, 553 F.3d 1224, 1227 (9th Cir. 2009) (quoting
Lagandaon v. Ashcroft, 383 F.3d 983, 987 (9th Cir. 2004))
(internal quotation marks omitted).

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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 permanent 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 represented by counsel and of the consequences, under
paragraph (6), of knowingly filing a frivolous application for asylum[.]
Id. § 1158(d)(4)(A).
[2] As previously noted, we have yet to squarely address
whether the advisals on the standard asylum application form
provide adequate notice of the right to be represented by
counsel and of the consequences of knowingly filing a frivo2

An asylum application is deemed frivolous “if any of its material elements 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 requirement that there be evidence of a deliberate fabrication of a material element of a claim, the term ‘fraudulent’ may be more appropriate than the
term ‘frivolous’ when applied to a questionable asylum application.”).

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lous asylum application. Nor has the BIA offered guidance on
this matter. See Yang v. Gonzales, 496 F.3d 268, 275 n.3 (2d
Cir. 2007) (per curiam) (noting that the BIA had yet to “opine
on whether the notice [on the standard asylum application
form] 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 TojCulpatan v. Holder, we assessed whether an alien demonstrated extraordinary circumstances sufficient to excuse the
untimely filing of his application. 612 F.3d 1088 (9th Cir.
2010) (per curiam). In rejecting the petitioner’s contention
that an asylum application can only be filed in open court, we
noted that the “[standard I-589 asylum] application form itself
provides the requisite [frivolousness] warnings.” Id. at 1092
n.4; see also Khadka v. Holder, 618 F.3d 996, 1006 (9th Cir.
2010) (Hall, J., concurring in part and dissenting in part) (noting that the petitioner had sufficient notice of the consequences of filing a frivolous asylum application based on the
warning provided in the standard I-589 asylum application
form).3
[3] To date, only one Court of Appeals, the Tenth Circuit,
has examined whether the warnings on the standard asylum
application form provide adequate notice for purposes of triggering the penalty in § 1158(d)(6). In Ribas v. Mukasey, it
held that “as a matter of law, . . . the written notice provided
on the asylum form is sufficient.” 545 F.3d 922, 930 (10th
Cir. 2008). Reasoning that the statute does not require any
particular form of notice, the court concluded that “[t]he
wording of this notice [in the asylum application] supplies all
3

We have also previously stated in dicta that the notice must be issued
by an immigration judge. See Chen v. Mukasey, 527 F.3d 935, 940 (9th
Cir. 2008). However, we do not consider this dicta dispositive, as the issue
in Chen was whether subsequent withdrawal of an asylum application bars
an IJ from making a finding of frivolousness.

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of the information concerning the consequences of filing a
frivolous application to which the alien is entitled under the
unambiguous language of § 1158(d)(4)(A).” Id.
[4] We join the Tenth Circuit in concluding that the written
warning on the asylum application adequately notifies the
applicant of both the consequences of knowingly filing a frivolous application for asylum as well as the privilege of being
represented by counsel, as required by 8 U.S.C.
§ 1158(d)(4)(A). The form states in clear, conspicuous, bold
lettering on the signature page that “[a]pplicants determined
to have knowingly made a frivolous application for asylum
will be permanently ineligible for any benefits under the
Immigration and Nationality Act.” Cheema signed this page,
below the bold warning. The form therefore notified Cheema
of the consequences specified by 8 U.S.C. § 1158(d)(6)—
permanent ineligibility for any immigration benefits—that
would attach to the knowing filing of a frivolous asylum application.4
[5] Similarly, we conclude that the application form adequately notified Cheema of the privilege of being represented
by counsel. As previously noted, the form states in plain language that “applicants may be represented by counsel”
directly above the signature line. Cheema contends that
because he did not check the box indicating whether he had
received the “list of persons who may be available to assist
. . . with [his] asylum claim[,]” he therefore was not adequately advised of his right to counsel. However, the
unchecked box means only that Cheema may or may not have
received a list of legal service providers. It does not mean that
4

Cheema also argues that the notice on the application is inadequate
because he is not a native English speaker. To the extent Cheema suggests
that he did not understand the advisals on the form, his contention is belied
by undisputed evidence in the record. Cheema testified before the IJ that
he read, wrote, and spoke English, and his interpreter certified that he prepared the asylum application at Cheema’s direction and read it to him in
Cheema’s native language, or a language that Cheema understood.

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he was unaware of his right to counsel, or that the clear statement on the form advising him of this right was insufficient.
Finally, Cheema argues that the notice must have been provided “[a]t the time of filing an application for asylum[,]”
meaning at the time that an alien appears in person before an
asylum officer or immigration judge and swears to the truth
of his application. The record demonstrates that Cheema did,
in fact, receive notice of the consequences of filing a frivolous
asylum application when he appeared before an asylum officer on November 15, 2002. Specifically, Cheema signed a
document titled “Record of Applicant’s Oath During an Interview,” which stated:
I also understand that if I filed my asylum application 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 that
he read this statement to Cheema, and that Cheema indicated
that he understood. Accordingly, the facts of this case do not
square with Cheema’s argument.
In any event, Cheema fails to identify any legal support for
his position. Not only is his interpretation of the “time of filing” unsupported by the plain meaning of the text, it does not
square 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 service
center but providing for direct filing with the asylum office
under certain circumstances). Cheema’s position is further
undercut by his concession, in his Reply Brief before this
court, that the statute does not otherwise require notice to be
given orally by an IJ or asylum officer. See Ribas, 545 F.3d
at 929 (“[N]othing in the statute requires that the notice be

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provided in verbal form or that the consequences of filing a
frivolous application be explained in detail to the applicant.”).
[6] The notice is on the application itself, which must be
signed by the alien, and because the alien is the person who
is responsible to determine precisely how and when the application 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 hold
the application for days or months before actually presenting
it to the authorities in the proper manner, whether directly or
by some other means, such as mail, private package service,
or courier. In any of those instances, we are satisfied that the
alien did, indeed, receive notice in the manner intended by
Congress. Accordingly, we reject Cheema’s contention that
notice is insufficient unless it is provided at the time of a hearing before an IJ or asylum officer.
IV.
CONCLUSION
[7] We hold that, as a matter of law, the written advisals
on the I–589 asylum application form provide applicants with
adequate notice of the consequences of filing a frivolous asylum application and of the privilege of being represented by
counsel, as required by 8 U.S.C. § 1158(d)(4)(A). Because
Cheema received adequate notice under § 1158(d)(4)(A), we
affirm the BIA’s order upholding the IJ’s finding that he
knowingly filed a frivolous asylum application.
PETITION DENIED.