Iuliu Ioan Albu v. Eric H. Holder, Jr.
761 F.3d 817
7th Cir.2014Background
- Petitioner Iuliu Ioan Albu, a Romanian national, applied for asylum in 2003; his counsel (Jagprit Sekhon) later was convicted in a large asylum-fraud scheme.
- Sekhon prepared and had Albu sign a fraudulent asylum application alleging false facts (e.g., earlier U.S. entry date, persecution in Romania, Pentecostal religion) and instructed Albu to memorize it.
- The asylum form and interview included written warnings and an interpreter certified that the warnings were translated into Romanian; Albu signed an oath acknowledging the warnings.
- DHS initially recommended approval but later, after delays and a missed second interview, cancelled asylum and issued a Notice to Appear; Albu conceded removability, withdrew asylum, and applied for cancellation of removal.
- The IJ found Albu not credible, concluded his asylum application was knowingly frivolous under 8 U.S.C. §1158(d)(6), and barred him from relief; the BIA affirmed the frivolous-application bar and the adverse credibility finding.
Issues
| Issue | Albu's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether §1158(d)(6) permanent bar applies when applicant knowingly filed a frivolous asylum application | Albu: He did not receive effective notice of the statutory consequence because he lacks English and the interpreter may have lied about translating the warning | Government: Warnings were given on form and at interview; interpreter certified translation; Albu signed oath — thus notice satisfied | Bar applies: court upholds IJ/BIA finding that warnings were translated and Albu knowingly filed a frivolous application |
| Whether factual falsity and knowledge are adequately supported | Albu: Challenges credibility and contends uncertainty about interpreter translation undermines finding | Government: Documentary evidence and Albu’s own conduct support falsity and knowledge | Court: Factual findings (false, material, knowing) supported by substantial evidence |
| Whether due process was violated during proceedings | Albu: IJ focused on wrong facts and process defects deprived him of fair hearing | Government: Albu received full hearing and standard procedures were followed | Court: No due process violation; claim is a merits disagreement and fails |
| Standard of review for BIA/IJ determinations | Albu: (implicit) challenges legal/factual conclusions | Government: Applies de novo to legal issues, substantial-evidence review to factual findings | Court: Applies de novo to legal issues and affirms factual findings under substantial-evidence standard |
Key Cases Cited
- Duron-Ortiz v. Holder, 698 F.3d 523 (7th Cir.) (explains de novo review of BIA legal determinations and review of IJ to extent adopted by BIA)
- INS v. Elias-Zacarias, 502 U.S. 478 (1992) (articulates substantial-evidence standard for factual findings)
- Siddique v. Mukasey, 547 F.3d 814 (7th Cir.) (falsity, materiality, and knowledge are factual questions for adjudicator)
- Pavlov v. Holder, 697 F.3d 616 (7th Cir.) (warnings on application or at interview generally suffice for notice requirement)
- Cheema v. Holder, 693 F.3d 1045 (9th Cir.) (similar holding that warnings can satisfy notice requirement)
- Ribas v. Mukasey, 545 F.3d 922 (10th Cir.) (application/interview warnings can satisfy §1158(d)(4)(A))
- Kadia v. Gonzales, 501 F.3d 817 (7th Cir.) (process vs. merits: following statutory procedures generally precludes finding of due process violation)
- Reno v. Flores, 507 U.S. 292 (1993) (recognizes Fifth Amendment due process rights in immigration proceedings)