475 F. App'x 41
6th Cir.2012Background
- Petitioner Todor Alexandrov, a Bulgarian national, arrived in 1996 on a student visa and sought asylum shortly thereafter; INS initially granted asylum in 1997 but terminated it in 1998 for fraudulent supporting documents.
- Petitioner admitted removability after his asylee status was terminated and sought to renew asylum, withholding of removal, and adjustment of status via the diversity visa lottery.
- In 1998, before renewing asylum, the IJ warned about frivolous asylum filings; consular memoranda concluded the asylum-supporting documents were fraudulent; DHS presented the memoranda’s conclusions at the hearing.
- Petitioner appealed the IJ’s decision to the BIA, which affirmed; this Court previously vacated the frivolousness finding and remanded, due to due process concerns about the consular memoranda.
- On remand (May 2007 master calendar; July 2008 merits), Petitioner withdrew asylum and pursued adjustment; Narensky (ICE) testified that investigations showed fraudulent medical certificates, a fraudulent subpoena, and a fraudulent court judgment; the IJ and BIA found frivolous asylum filing and statutory ineligibility for adjustment, which this Court affirmed.
- The court ultimately AFFIRMS the agency’s determination that Petitioner knowingly filed a frivolous asylum application and is permanently ineligible for adjustment of status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether vacating the prior frivolousness finding bars reconsideration | Alexandrov argues vacature prevents re-litigation | Remand allowed a fresh evaluation of evidence | Remand permitted reconsideration and new evidence supports frivolous finding |
| Whether withdrawal of asylum prevents authenticity review | Withdrawal negates need to assess authenticity | Withdrawal does not avoid reviewing for frivolousness | Withdrawal does not obviate need to determine frivolousness under §1158(d)(6) |
| Whether the remanded evidence supports a finding of fraud | New evidence not enough to prove fraud | Investigations provide substantial evidence of fraud | Substantial evidence supports BIA’s finding of fraudulent documents |
| Whether Petitioner knew of the fraud | Petitioner lacked knowledge of fraud | Circumstantial evidence shows knowledge of forgery | Court finds substantial evidence Petitioner knew documents were fraudulent |
Key Cases Cited
- Alexandrov v. Gonzales, 442 F.3d 395 (6th Cir. 2006) (vacated frivolousness finding due to due process concerns; remanded for new proceedings)
- Lazar v. Gonzales, 500 F.3d 469 (6th Cir. 2007) (withdrawal does not moot review of frivolousness or eligibility)
- Sterkaj v. Gonzales, 439 F.3d 273 (6th Cir. 2006) (supports inference of fraudulent submission when explanations lacking)