Muhammad Siddique v. Michael Mukasey , 547 F.3d 814 ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1127
M UHAMMAD S IDDIQUE,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General of
the United States,
Respondent.
Petition for Review of a Decision of the
Board of Immigration Appeals
A RGUED O CTOBER 15, 2008—D ECIDED O CTOBER 31, 2008
Before E ASTERBROOK, Chief Judge, and C OFFEY and W OOD ,
Circuit Judges.
E ASTERBROOK, Chief Judge. 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). A regulation
defines a frivolous application as one any material element
2 No. 08-1127
of which has been fabricated. 8 C.F.R. §1208.20. See also
Matter of Y– L–, 24 I.&N. Dec. 151, 155 (2007). Both an
immigration judge and the Board of Immigration Appeals
concluded that Muhammad Siddique knowingly presented
a frivolous application for asylum; the result is not only a
removal order but also ineligibility for adjustment of
status.
Siddique, a citizen of Pakistan, contended that he had
been persecuted (and faced future persecution) in Pakistan
because he worked for and supports the Mohajir Qaumi
Movement (MQM), a political party of mohajirs—persons
who immigrated from India when the British colony was
partitioned in 1947, and their descendants. Siddique
contends that the police in Karachi, where he lived,
frequently arrest, beat, and even kill MQM’s members and
supporters. According to Siddique’s application for asylum
and testimony at a hearing, the police gunned down his
wife and two-year-old son as the family was leaving an
MQM meeting. The police arrested and detained him after
these events; as soon as he was released on bond, Siddique
testified, he went into hiding and fled to Canada and,
eventually, the United States. To bolster his story, Siddique
submitted autopsy reports for his wife and son, plus a
police report documenting his arrest (according to this
report, the police charged Siddique with attempted
murder).
The IJ credited Siddique’s story but denied his applica-
tion for asylum, in part because he had failed to seek
asylum in Canada before entering the United States. While
Siddique’s appeal to the BIA was pending, he married a
No. 08-1127 3
citizen of the United States, who applied on his behalf for
an immediate-relative visa. Meanwhile immigration
officials studied the documents that Siddique had submit-
ted to the immigration judge and concluded that they are
phony. Both Siddique and the agency asked the BIA to
remand without reaching the merits—Siddique so that his
status could be adjusted to that of permanent resident on
an I-130 visa, and the agency so that the IJ could consider
the analysis of the documents.
Faced with proof that the police and autopsy reports had
been forged, plus proof that he had not married in Pakistan
or had a child, Siddique confessed during a hearing on his
wife's visa application that “none of the incidents in [the
asylum] claim ever happened.” In a new hearing before the
IJ, Siddique added that he had invented “some of” the
activities he claimed to have performed as an employee
and supporter of the MQM. Still, he insisted, all members
of MQM face persecution in Pakistan, so he renewed his
request for asylum. The IJ found his application frivolous,
since it rested on both forgery and perjury, which Siddique
did not recant until after the agency had tracked down the
truth. The conclusion that Siddique’s application was
frivolous disqualified him from adjustment of status, and
the IJ said that it would therefore be pointless to continue
the proceedings until the agency resolved his wife’s I-130
application. The immigration judge also denied asylum as
an exercise of discretion, given Siddique’s dissembling,
independent of the formal finding that the application was
frivolous. The BIA affirmed.
The portion of the bureaucracy responsible for
4 No. 08-1127
immediate-relative applications chugged away and
approved his wife’s petition in May 2008. Siddique argues
that by approving this petition, and taking related steps,
the Citizenship and Immigration Service has “waived” his
disqualification under §1158(d)(6) and that we should
therefore remand with instructions to adjust his status to
that of permanent resident. Neither §1158(d)(6) nor any
other section of the Immigration and Nationality
Act allows the agency to “waive” an alien’s permanent
disqualification. Nor has it done so. The bureau responsible
for I-130 matters processed his wife’s application—perhaps
because the left hand does not know what the right hand
is doing, perhaps to avoid delay should this court vacate
the disqualification order—but a favorable decision on that
application is just one step toward permanent residence.
An approved immediate-relative application is a necessary
but not a sufficient condition for adjustment of status. The
motion for remand is denied.
To the extent that Siddique wants us to review the IJ’s
order denying his request for a continuance, we lack
jurisdiction. See 8 U.S.C. §1252(a)(2)(B)(ii); Ali v. Gonzales,
502 F.3d 659 (7th Cir. 2007). But the finding that his
application for asylum was frivolous does not represent an
exercise of administrative discretion within the scope of
§1252(a)(2)(B)(ii), so Siddique is entitled to judicial review
of the agency’s conclusion that he is permanently ineligible
for any benefit under the immigration laws.
Whether an application rests on false submissions is a
question of fact. Whether a falsehood is knowing also is a
question of fact. Likewise whether a given proposition is
No. 08-1127 5
“material” is a question of fact. See United States v. Gaudin,
515 U.S. 506 (1995). It follows that the inquiry for a court of
appeals is whether the agency’s decision is supported by
substantial evidence. See Lazar v. Gonzales, 500 F.3d 469,
474 (6th Cir. 2007); Ignatova v. Gonzales, 430 F.3d 1209, 1214
(8th Cir. 2005). Siddique relies on several decisions sug-
gesting that judges should play a larger role because of the
unyielding consequence prescribed by §1158(d)(6).
See Luciana v. Attorney General, 502 F.3d 273, 278–79 (3d Cir.
2007); Chen v. Mukasey, 527 F.3d 935, 939 (9th Cir.
2008); Barreto-Claro v. Attorney General, 275 F.3d 1334, 1338
(11th Cir. 2001). But all of these decisions concern de novo
review (subject to qualification under Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984))
of the agency’s legal understandings. There is no conflict
on the standard of review when the only issue is whether
particular representations are knowingly false or material.
Siddique maintains that the IJ and BIA failed to inquire
whether his fraud was material. That’s not so. Both the IJ
and the BIA observed that the representations—that
Siddique’s wife and son had been murdered after a politi-
cal meeting, and that he had been arrested on trumped-up
charges—were the application’s principal basis. Take them
away and the application collapses. Siddique knew that his
representations were false: Although it is possible to
submit forged documents thinking them to be genuine
(someone else may have misled the alien about their
provenance, see Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir.
2004)), Siddique knew that he had neither a wife nor a
child in Pakistan, that the police had not murdered his
(nonexistent) family, and that he had not been arrested and
6 No. 08-1127
charged with attempted murder. He could not have
believed that his representations were true.
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 representa-
tion 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.
The petition for review is dismissed for want of jurisdic-
tion 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.
10-31-08