Jaswant Dol v. Eric H. Holder Jr. , 492 F. App'x 774 ( 2012 )

FILED
NOT FOR PUBLICATION SEP 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASWANT SINGH DOL; KULWINDER No. 08-73598
KAUR DOL,
Agency Nos. A079-561-227
Petitioners, A079-561-228
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
JASWANT SINGH DOL; KULWINDER No. 09-70257
KAUR 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 precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: FERNANDEZ, PAEZ, and NGUYEN, Circuit Judges.
Jaswant Singh Dol (“Dol”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) decision adopting and affirming an immigration judge’s (“IJ”)
denial of Dol’s application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”), and the BIA’s denial of Dol’s
motion to reconsider. Specifically, Dol challenges the BIA’s decision upholding
the IJ’s determination that he knowingly filed a frivolous asylum application, and
that he is therefore permanently barred from receiving immigration benefits. Our
jurisdiction 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 findings
underlying an IJ’s order are reviewed under the substantial evidence standard. See
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 (9th Cir. 2008). We deny Dol’s
petition for review.1
1
Dol’s wife, Kulwinder Kaur Dol, did not file a separate asylum application. Her
claim 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) (derivative
asylum applications of a spouse and children “must rise or fall with that of the lead
petitioner”).
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 the
10 Petitioner cannot possibly have understood the legal significance of the term
11 ‘frivolous[,]’” he testified that he knew his first asylum application was false and
12 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 falsify
14 the asylum application, he therefore should not be held responsible for knowingly
15 filing a false application. We have held that a motion based upon ineffective
16 assistance of counsel must generally meet the procedural requirements established
17 by the BIA in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Castillo-Perez
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.”3
10 Because Dol failed to establish that it is “more likely than not” that he
11 would be tortured if removed, his claim for protection under the CAT also fails. 8
12 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 his
14 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.
1 reconsider for an abuse of discretion. Lara-Torres v. Ashcroft, 383 F.3d 968, 972
2 (9th Cir. 2004), amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 1105 (9th
3 Cir. 2005). “Unless the BIA acted arbitrarily, irrationally, or contrary to law, we
4 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’s
6 motion for reconsideration because Dol failed to identify any error in the BIA’s
7 prior decision.
8 PETITION DENIED.