Aksinia Kantcheva v. Jeff Sessions
682 F. App'x 389
| 6th Cir. | 2017Background
- Aksinia Kantcheva, a Bulgarian national, entered the U.S. in 1994 and later adjusted through various nonimmigrant statuses; DHS commenced removal proceedings in 2010 for overstaying authorized status.
- Kantcheva applied for adjustment of status under INA § 245(i) in 2010; at a 2012 merits hearing the IJ considered her prior 1998 I-589 asylum application and a 2001 asylum officer referral for impeachment.
- The IJ found numerous, significant inconsistencies between Kantcheva’s asylum application and her merits hearing testimony (e.g., claims about rape, her father’s cause of death, her husband’s political activity) and concluded she admitted her asylum filing was only ~90% true.
- The IJ concluded Kantcheva willfully misrepresented material facts, rendering her inadmissible under INA § 212(a)(6)(C)(i), and alternatively denied adjustment as a matter of discretion after weighing equities.
- The BIA adopted the IJ’s reasoning, affirmed the inadmissibility finding and the discretionary denial, holding Kantcheva’s positive equities did not outweigh her evasiveness and lack of truthfulness.
- Kantcheva petitioned for review in the Sixth Circuit challenging (1) the materiality determination and resulting statutory ineligibility and (2) the discretionary denial and alleged failure to follow precedent in balancing equities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kantcheva’s misrepresentations were material such that she is inadmissible under INA § 212(a)(6)(C)(i) | Kantcheva: misrepresentations were not material | DHS/BIA: inconsistencies were deliberate and had a natural tendency to influence decisions | Court: Affirmed BIA; misrepresentations were material and supported inadmissibility |
| Whether the IJ/BIA properly exercised discretion or failed to balance equities | Kantcheva: IJ/BIA failed to properly balance positive and adverse factors per precedent | DHS/BIA: IJ/BIA balanced equities and properly denied relief | Court: Court has jurisdiction to review alleged failure to follow precedent and concluded IJ/BIA did balance; denied review of discretionary denial |
| Whether this court has jurisdiction to review the challenges raised | Kantcheva: seeks review of both statutory and discretionary rulings | Government: discretionary denials are generally unreviewable though failure to follow precedent is reviewable | Court: Exercised jurisdiction over non-discretionary precedent argument; otherwise lacked jurisdiction to review discretionary merits but found no precedent failure |
Key Cases Cited
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (standard for reviewing factual findings in immigration cases)
- Kungys v. United States, 485 U.S. 759 (1988) (definition of materiality for misrepresentations)
- Forbes v. INS, 48 F.3d 439 (9th Cir. 1995) (willful misrepresentation requires knowledge of falsity)
- Marku v. Ashcroft, 380 F.3d 982 (6th Cir. 2004) (substantial-evidence standard for BIA factual findings)
- Patel v. Gonzales, 432 F.3d 685 (6th Cir. 2005) (deference to BIA’s reasonable statutory interpretations)
- Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005) (review the IJ when BIA adopts IJ reasoning)
- Parklak v. Holder, 578 F.3d 457 (6th Cir. 2009) (jurisdiction to review certain statutory ineligibility findings)
- Billeke-Tolosa v. Ashcroft, 385 F.3d 708 (6th Cir. 2004) (reviewability of alleged failure to follow precedent in discretionary denials)