Sodhi Singh v. Jefferson Sessions
691 F. App'x 422
9th Cir.2017Background
- Petitioner appealed the BIA’s dismissal of his appeal from the IJ’s finding that his asylum application was frivolous under 8 U.S.C. § 1158(d)(6), and the BIA’s denial of his motion to reopen based on ineffective assistance of counsel.
- The IJ found Petitioner’s application was prepared by immigration consultant Boota Singh Basi, who testified he forged and prepared fraudulent asylum applications and identified his signature on Petitioner’s file.
- The IJ and BIA found Petitioner’s narrative used boilerplate language similar to other applications Basi prepared and concluded material elements were fabricated.
- The BIA concluded the four procedural requirements for a frivolousness finding were met: notice, specific finding of knowing filing, preponderance of evidence, and opportunity to explain.
- Petitioner argued his counsel (Kaufman) failed to inform him he could present evidence/witnesses and failed to brief adequacy of notice; BIA rejected these claims, noting prior counsel and the IJ had given notice and the BIA’s 2005 decision and the application itself contained notice about frivolousness consequences.
- The Ninth Circuit denied the petitions for review, holding substantial evidence supported the frivolousness finding and the BIA did not abuse its discretion in denying the motion to reopen for ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether procedural requirements for finding an asylum application frivolous were met | Petitioner implicitly contested frivolous finding; argued inadequate notice (not raised to BIA) | IJ/BIA: specific findings, supported by Basi’s testimony and documentary similarities; Petitioner had chance to explain | Court: Denied review of unraised notice claim; substantial evidence supports frivolousness finding and requirements met |
| Whether BIA abused discretion in denying motion to reopen for ineffective assistance of counsel | Petitioner: Kaufman failed to advise he could present evidence/witnesses and failed to brief adequacy of notice | BIA: Prior counsel and IJ had given notice; BIA’s 2005 order and application contained notice; Petitioner failed to exhaust some claims | Court: BIA did not abuse discretion; ineffective-assistance claim rejected; unexhausted contentions not reviewable |
Key Cases Cited
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir.) (scope of review when BIA adopts and adds analysis)
- Fernandes v. Holder, 619 F.3d 1069 (9th Cir.) (standards for frivolousness review)
- Ahir v. Mukasey, 527 F.3d 912 (9th Cir.) (jurisdictional limits where claim not raised to BIA)
- Martinez-Hernandez v. Holder, 778 F.3d 1086 (9th Cir.) (standard for reviewing BIA denial of motion to reopen and ineffective-assistance framework)
- Garcia v. INS, 222 F.3d 1208 (9th Cir.) (notice to attorney constitutes notice to alien)
- Tijani v. Holder, 628 F.3d 1071 (9th Cir.) (lack of jurisdiction to review unexhausted claims)