Hazmik Kulakchyan v. Eric Holder, Jr.
2013 U.S. App. LEXIS 19251
| 9th Cir. | 2013Background
- Armenian petitioner applied for asylum and provided a false arrival date.
- Asylum was denied time-barred after discovery of the true arrival date; she withdrew the asylum request and sought adjustment of status and a § 212(i) waiver.
- The IJ pretermitted the adjustment and waiver requests based on a finding that the asylum application was frivolous.
- BIA affirmed the IJ, holding petitioner knowingly filed a frivolous asylum application and was barred from adjustment and the § 212(i) waiver.
- The court analyzes de novo the frivolousness determination and reviews factual findings for substantial evidence, applying BIA’s safeguards and Chevron deference to the BIA’s interpretation of statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Frivolousness framework compliance | Kulakchyan argues procedural safeguards were insufficient | HOlder argues warnings and procedures complied | Frivolous finding upheld; warnings adequate and framework satisfied |
| Materiality of misrepresentation about entry date | Misrepresentation immaterial to asylum eligibility | Misrepresentation affected timeliness and validity of the asylum claim | Misrepresentation material; supports frivolous finding |
| Effect of withdrawing asylum on frivolousness finding | Withdrawal should avoid frivolousness inquiry | BIA may rely on withdrawn application to find frivolousness | Withdrawal does not preclude frivolousness finding; X-M-C- interpretation upheld |
| Chevron deference to Matter of X-M-C- interpretation | Statutory ambiguity could limit deference | BIA interpretation reasonable and well-grounded | Court defers to BIA’s interpretation; X-M-C- affirmed |
Key Cases Cited
- Matter of Y-L-, 24 I. & N. Dec. 151 (B.I.A. 2007) (safeguards require notice, finding, materiality, and opportunity to explain)
- Matter of X-M-C-, 25 I. & N. Dec. 322 (B.I.A. 2010) (only filing triggers frivolousness inquiry; withdrawal allowed)
- Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008) (affirmative deference to BIA interpretation under Chevron where statutorily ambiguous)
- Kailu v. Mukasey, 548 F.3d 1215 (9th Cir. 2008) (misrepresentation about entry date is material to timeliness)