TAKHIR ASHIROVICH KHAYTEKOV v. MERRICK B. GARLAND, Attorney General
No. 19-3149
United States Court of Appeals for the Sixth Circuit
February 25, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 22a0036p.06. On Remand from the United States Supreme Court. Petition for Review from the Board of Immigration Appeals; No. A 094 219 176. Before: SILER, COLE, and MURPHY, Circuit Judges.
COUNSEL
ON SUPPLEMENTAL BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Karen L. Melnik, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
MURPHY, Circuit Judge. Often described as an immigration “death sentence,” a finding that an immigrant “knowingly made a frivolous application for asylum” renders the immigrant “permanently ineligible for any benefits under” our immigration laws.
Takhir Khaytekov received this written warning, but immigration judges also routinely give another verbal warning in court. The judge in Khaytekov‘s case did not give this secondary warning, and Khaytekov argues that the failure to do so violated
I
Khaytekov, a citizen of Uzbekistan, came to this country in 2001 on a temporary visa. After he overstayed his visa by many years, the government instituted proceedings to remove him. Khaytekov sought asylum. His asylum application alleged
While his rеmoval proceedings were pending, Khaytekov married a U.S. citizen. He thus withdrew his request for asylum and instead applied to adjust his status to lawful permanent resident. This application required him to show that he was “admissible” into the United States.
Yet the Attorney General has discretion to waive the inadmissibility of immigrants like Khaytekov who lie in their immigration proceedings if their removal would cause “extreme hаrdship” to certain relatives in the United States.
Khaytekov appealed to the Board of Immigration Appeals. In addition to challenging the immigration judge‘s opinion, he filed motions to remand based on new precedent and new evidence and a motion for the Board to appoint a three-judge panel. As relevant now, he moved to remand on the ground that a recent Supreme Court decision made him eligible for cancellation of removal. See Pereira v. Sessions, 138 S. Ct. 2105 (2018). This relief allows the Attorney General to cancel the removal of immigrants who meet various requirements, including that they have been physically present in the United States for 10 years.
The Board denied Khaytekov‘s motions and upheld the immigration judge‘s decision. Despite Khaytekov‘s request for a remand to apply for cancellation of removal, it distinguished Pereira on the (mistaken) ground that Khaytekov did not seek that form of relief. It next found that the immigration judge properly held that Khaytekov‘s frivolous asylum application disqualified him from any benefits under the immigration laws. See
Khaytekov petitioned this court to review the Board‘s order. We originally dismissed his petition in part and denied it in part. Khaytekov v. Barr, 794 F. App‘x 497, 503 (6th Cir. 2019). We held that we lacked jurisdiction to consider the Board‘s denial of Khaytekov‘s motion to remand for the consideration of new evidence, and we found that the Board had properly denied his motion to appoint a thrеe-member panel. Id. at 499-501. Although we next recognized that the Board had wrongly distinguished Pereira on the ground that Khaytekov was not seeking cancellation of removal, we found its misstatement harmless because Khaytekov was still ineligible for that relief. Id. at 502. Under our then-existing precedent, the government could trigger the cancellation-of-removal statute‘s “stop-time rule” by sending a second notice to an immigrant that included the date and location information missing from the first notice. Id. (citing Garcia-Romo v. Barr, 940 F.3d 192, 199-203 (6th Cir. 2019)). Because Khaytekov had not been in this country for 10 years when he recеived a second notice, he remained ineligible for cancellation of removal under Garcia-Romo. Id. We lastly declined to consider Khaytekov‘s argument that he had not filed a frivolous asylum application because he could not obtain any of his requested remedies no matter how we ruled on that more far-reaching issue. Id. at 502-03.
After our decision, the Supreme Court overruled Garcia-Romo in Niz-Chavez. Niz-Chavez held that only a single document could qualify as a “notice to appear” that triggered the “stop-time rule.” See 141 S. Ct. at 1480-85. It thus rejected Garcia-Romo‘s holding that the government could trigger that rule by sending multiple notices containing all necessary information. Id. Khaytekov had petitioned the Supreme Court for certiorari on this question. The Court granted his petition, vacated our judgment, and remanded this case for reconsideration in light of Niz-Chavez. See Khaytekov v. Garland, 141 S. Ct. 2591, 2592 (2021).
II
As we noted in our last opinion, the Board mistakenly stated that Khaytekov had not sought cancellation of removal because he requested that relief in a motion to remand. Khaytekov, 794 F. App‘x at 502. Our prior opinion found this misstatement harmless on the ground that Khaytekov could not satisfy cancellation of removal‘s physical-presence requirement. As the government concedes, Niz-Chavez rejected this part of our reasoning. Immigration authorities did not send Khaytekov a single document with all of the information that a notice to appear must contain. Under Niz-Chavez, then, he never received a
A
“Refugees” who will face persecution in their home countries because of various protected traits (such as their religion or political opinion) may ask the Attorney General to grant them asylum.
If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.
When the Board concludes that paragraph (d)(6)‘s penalty applies to an asylum seeker due to a frivolous application, we review any underlying factual findings (such as the finding that the asylum seeker acted with the required knowledge) under the deferential substantial-evidence test. See Lazar v. Gonzales, 500 F.3d 469, 474-75 (6th Cir. 2007); see also Alexandrov v. Holder, 475 F. App‘x 41, 46, 48-49 (6th Cir. 2012). But we review any legal conclusions (such as a conclusion about the proper meaning of the language in
B
This statutory scheme bars Khaytekov‘s request for cancellation of removal. At the outset, he does not dispute two things necessary to trigger paragraph (d)(6)‘s penalty. Khaytekov does not challenge the finding that his application was “frivolous” within the meaning of that paragraph.
1
Khaytekov initially asserts that he only “lodged” his asylum application (and did not “file” it) with the immigration court. In
Neither the law nor the facts support this reading. Legally, Khaytekov identifiеs nothing in the asylum statute or its implementing regulations that treats an asylum application as unfiled (or merely “lodged,” in his words) until an immigrant signs Part F or Part G. The asylum statute tells the Attorney General to “establish” the “procedure” for processing applications.
Factually, that is what happened here. The immigration judge and Board both found that Khaytekov filed his application by placing it in the official record at a hearing on February 25, 2008. A.R. 6 n.1, 389. Substantial evidence supports this factual finding. See Lazar, 500 F.3d at 474-75. At the beginning of the hearing, the immigration judge inquired of Khaytekov if the hearing had been “set for yоu to file your applications for relief.” A.R. 1009. Khaytekov‘s counsel responded, “That‘s correct, Your Honor.” Id. The asylum application then made its way into the record. The immigration court stamped it “received in court” on February 25, 2008. A.R. 1309. Khaytekov had also signed Part D of the application and certified its accuracy. A.R. 1317. But the parties (apparently) could not immediately proceed to the application‘s merits at this hearing because
The parties’ conduct at the next hearing after Khaytekov got married confirms that he filed his asylum application. His counsel asked “that Mr. Khaytekov‘s I-589 be withdrawn” so that he could proceed with his adjustment-of-status application. A.R. 1013-14. The judge warned Khaytekov that he could not seek asylum again and stated that the record “will show that application being withdrawn.” A.R. 1014-15. Yet if Khaytekov had never filed his application, he would have had nothing to withdraw. And immigrants who file frivolous applications cannot avoid a finding that their applications were frivolous by later withdrawing them. See Lazar, 500 F.3d at 476-77; cf. Ghazali v. Holder, 585 F.3d 289, 293 (6th Cir. 2009).
The asylum statute‘s overall structure also shows that, contrary to Khaytekov‘s claim, parties can “file” asylum applications even if they have not signed Parts F or G. We presume that a word like “file” bears the same meaning when used more than once in the same section. See Mohasco Corp. v. Silver, 447 U.S. 807, 815-17, 826 (1980); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170-73 (2012). And two other uses of this word in
Likewise, the asylum statute generally bars relief unless an “application has been filed within 1 year” оf an immigrant‘s arrival in the United States.
Khaytekov nevertheless says that a different regulation compels his interpretation.
In short, Khaytekov “made” and “filed” his application under the relevant provisions when he submitted it for entry into the record on February 25, 2008. And nothing in the statute or regulations required him to sign Part G for his application to be considered “made” or “filed.”
2
Even if he did make a frivolous application, Khaytekov next argues, that fact would satisfy only one of the two statutory requirements for triggering paragraph (d)(6)‘s penalty. The government also must show that he “received the notice under paragraph (4)(A).”
Khaytekov responds that most applicants who are in immigration proceedings typically get another verbal warning from an immigration judge at the hearing at which they both file their application and sign Part G. Cf. Brushtulli v. Holder, 594 F. App‘x 282, 286 (6th Cir. 2014); Ceraj v. Mukasey, 511 F.3d 583, 589 (6th Cir. 2007). When they sign Part G, asylum seekers likewise reaffirm that they know of the consequences of filing a frivolous application. A.R. 1318. But the record in this case contains no evidence that the immigration judge gave any additional verbal warning, and Khaytekov did not fill out Part G. Id. Because Khaytekov did not receive this secondary warning, he claims that he lacked legally sufficient notice under paragraph (d).
Both text and precedent rebut his interpretation. Nоthing in paragraph (d)(6)‘s language requires immigration judges to give verbal notice on top of the application‘s written notice. According to the paragraph, Khaytekov must have “received the notice under paragraph (4)(A)[.]”
Perhaps Khaytekov‘s best textual counterargument concerns the required timing of this notice. Paragraph (d)(4)(A) suggests that immigration authorities must “advise” asylum seekers of the relevant consequences at a specific time: “[a]t the time of filing an application[.]”
The statutory structure confirms this point. As noted, it contemplates that а “filing” can occur before any in-person interview or hearing. See
Precedent points in the same direction. Six other circuit courts have held that the asylum application‘s written warning satisfies paragraph (d)‘s notice requirements. See Ndibu v. Lynch, 823 F.3d 229, 234-36 (4th Cir. 2016); Niang, 762 F.3d at 253-55; Ruga v. U.S. Att‘y Gen., 757 F.3d 1193, 1196-97 (11th Cir. 2014); Pavlov v. Holder, 697 F.3d 616, 618 (7th Cir. 2012); Cheema, 693 F.3d at 1048-49; Ribas v. Mukasey, 545 F.3d 922, 928-30 (10th Cir. 2008). As these courts explained, an immigration judge has discretion to give a verbal warning at the start of an immigration hearing, but nothing in the statute requires the judge to do sо if an applicant received the application‘s written warning. See Ndibu, 823 F.3d at 236; Niang, 762 F.3d at 254.
Admittedly, these six cases involved immigrants who (unlike Khaytekov) had applied for asylum before immigration authorities initiated removal proceedings against them. After the immigrants filed their applications, therefore, asylum officers gave an additional verbal warning during their asylum interviews (and some immigrants appear to have signed Part F of the application acknowledging the consequences of frivolous filings). See Ndibu, 823 F.3d at 230, 234; Niang, 762 F.3d at 252; Ruga, 757 F.3d at 1195; Pavlov, 697 F.3d at 618; Cheema, 693 F.3d at 1046-47; Ribas, 545 F.3d at 924. Khaytekov claims that these decisions rely on this secоndary warning as the ground for finding the statutory notice mandate satisfied. And since he received only the application‘s written warning, he claims, his notice falls short under their logic.
Although Khaytekov is correct on his factual claim that the immigrants in these other cases received an additional warning, he is wrong on his legal claim about the scope of their holdings. The cases all hold, quite explicitly, that “the notice set forth in the I-589 application for asylum suffices to satisfy the requirement under
To be sure, these courts recognized the possibility that this written warning might not suffice if an applicant did not adequately learn of it — say, because the applicant does not speak English and the person who completed the application did not pass along this information. See, e.g., Ndibu, 823 F.3d at 235 n.4; Niang, 762 F.3d at 254 n.1; Cheema, 693 F.3d at 1049 n.4. In that respect, Khaytekov suggested at his final hearing that his lawyer failed to go over his application with him before he signed it. A.R. 472-77. At an earlier hearing, however, Khaytekov testified to the contrary — that his attorney did, in fact, review the application with him. A.R. 1064. And the attorney attested to having done so on the application itself. A.R. 1317. So substantial evidence supports the conclusion that Khaytekov received the required notice. See Pavlov, 697 F.3d at 618-19.
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In sum, the Supreme Court‘s decision in Niz-Chavez overturned our earlier conclusion that Khaytekov could not obtain cancellation-of-removal relief because he could not satisfy that relief‘s physical-presence requirement. Even after that decision, however, Khaytekov remains ineligible for cancellation of removal because he filed a frivolous asylum application. And Niz-Chavez does not affect any other aspect of our earlier opinion, so we simply incorporate the other parts by reference. See Khaytekov, 794 F. App‘x at 499-501.
We dismiss Khaytekov‘s petition for review in part and deny it in part.