*1 limit, in which event of said age excess remaining be the limit shall controlling of such insurance.” proceeds
available control latter would because phrase district contracted school $500,000.
$2,000,000 coverage, Un- law, ambigui- must construe
der Idaho we against Coregis be-
ties in the contract “clear and precise
cause it not use did scope to restrict of cover-
language ... Clark, P.3d at 245.
age.” judgment reverse
Accordingly, we court, judgment and render
the district Policy The limits
Ferguson’s favor. $2,000,000.00.
REVERSED. CHEN, Petitioner, Min
Xiao MUKASEY, Attorney
Michael B.
General, Respondent.
No. 04-72413. Appeals,
United States Court
Ninth Circuit. Feb.
Argued and Submitted
Filed June CA, Horn, Angeles, for the
Howard Los petitioner. Fiorino, Paul M.
John McAdams Justice, Department United States DC, respondent. Washington, for the *2 TROTT, States, Before: STEPHEN S. Chen performed never such work. CLIFTON, RICHARD R. The visa authorized her to remain in the CALLAHAN, M. United States until April CONSUELO Circuit no later than stayed date, 1999. When she Judges. beyond that charged she was with and conceded remov- TROTT, Judge: Circuit ability. Chen, Xiao Min native and citizen of In March of presented Chen China, seeks review of the Board of Immi- application for asylum, which we now know (“BIA”) gration Appeal’s decision affirm- was rife with fraud. signature page (“IJ”) immigration judge’s decision on the by 1-589 filed Chen contains the declaring asylum Chen’s application frivo- following warning in bold font: hearing April lous. At a Chen Applicants illegally United States admitted that the contents of asylum subject to removal if asylum them false, application were that the information withholding claims are not granted by provided asylum she to an officer in an officer or an immigration false, 1999 interview was and that judge. Any provided information marriage and birth certificates she completing application may be used officer were false. of, basis for the institution or as that, Consequently, the IJ found pursuant in, evidence removal proceedings, even if 1158(d)(6), to 8 U.S.C. Chen had know- is later withdrawn. Ap- ingly filed a asy- plicants determined to have knowingly lum. Because a of frivolousness made a permanently makes alien ineligible for will be permanently ineligible Immigration benefits under the and Na- [INA], benefits under the (“INA”), tionality Act the IJ denied both added). (emphasis Additionally, the No- waiver inadmissi- tice of Privilege of Counsel and Conse- bility and her application adjustment of quences Knowingly Filing a Frivolous status based on her to a United Application Asylum, served on Chen’s States citizen. attorney August on contained the following warning: you “If knowingly file a argues that because she withdrew frivolous application YOU prior to testifying sup- WILL BE BARRED FOREVER from re- port prior of it and to a final determination ceiving any benefits under the [INA].” application, the IJ erred. We have jurisdiction pursuant her application, 8 U.S.C. Chen claimed that 1252(a)(2)(D), in light of a she was married in recent China to a man named Circuit, decision in Hua the Second Zhou and grant we had two children. She said petition that when and remand to she became pregnant the BIA to with her child, determine in the second first instance and her proper husband feared 1158(d)(6). they interpretation punished would be 8 U.S.C. the Chi- government.
nese In spite fear, of this couple was determined to have the child. I According to her application, when BACKGROUND nearly was four months pregnant, the fac- Chen entered the United tory States where she worked conducted a rou- on a non-immigrant P-3 visa to work as a tine health checkup, and her pregnancy dancer, but, folk after entering the United was discovered. Chen was ordered to the giving you him and he is clues on how to hospital contact- office, factory’s you claimed can by shaking his head. So perform an abortion. Chen answer ed factory “began head at the he tells his shakes people that the do what strug- hospital. by it, me to the plot you’re and force the one that’s bound but *3 I was my might. However gled very with all your take answer seri- ma'am. So factory’s into van finally get to later, forced say I’m to ously going not because of to the fe- injury afraid because was Oh, only said poor lady, she she tus.” to wanted me consider this document I’m attorney going her said to. to cause felt got hospital, to she
When Chen say, lady That me to consider and told of nearly thought and “even hopeless ma'am, frivolous that’s it on the if it’s required to sign death.” refused She asylum, withholding,1 benefits. No no to let agreed until the staff documentation Torture, Against nothing. no Convention hospi- to her her husband come call youDo understand? supposed tal. was to be "Whileshe call, escaped phone ran outside and she being permitted go time to off the After escape, her claimed in taxi. After Chen and discuss the matter with record her people home go she could not because attorney, told that she Chen the IJ wished house factory from went both her deciding him to consider to find daily trying house parent’s and her asylum. attorney request her Chen’s until the stayed with relatives her. She “we’d to have time to file told the IJ like May July In of baby of 1998. was born materials, maybe supplemental ... some 1998, birth of alleged months after two maybe an affidavit.” The IJ ac child, her Chen came to the U.S. second cepted Chen’s of life in Chi- escape “nightmare” consideration continued removal na. 15, 1999. until hearing November 1999, during hearing, Chen May In of 1999, of appeared In November was an IJ that if she advised Her an IJ with new counsel. attor- before asylum, filed a that “we wish to ney informed IJ from receiv- permanently would be barred do a perhaps withdrawal in- benefits. The IJ immigration adjustment of status on [based do an formed Chen that “frivolous Yang, citi- Ping U.S. Chen’s state- is one which contains a continuance requested Counsel zen].” responses questions ments record, January of until review Af- up.” or made deliberately fabricated file adjustments. prepare, acknowledged under- ter that she that, as of November attorney told IJ warning, stood the IJ said: 1999, yet not filed an Chen’s husband had ma'am, you still Understanding do visa for Chen. petition requesting a 1-130 wish to consider this me also not an 1-485 He had your request asylum? deciding adjustment of for Chen. status own you your Ma'am should answer 2000, January Chen returned to is a bad because if this it, and told the that her husband had you are court IJ has information in forever, 1-130 and an 1-485 on behalf. filed an whose barred [sic] one was the 1-130 set looking And I at A status discussion of attorney. see withholding stating seeking of removal. See 8 was that the IJ incorrect note C.F.R. 1208.20. that a bars 2000, request- Q. for November and the IJ you’d If like a date on when it ed the court withdrawn, Chen inform should the 1-130 it was November 15th. approved prior be to that date. In No- A. That’s fíne. problem. No May vember and Novem- ber of Chen’s counsel told the yet approved.
the 1-130 had not been A. I’ve shown it’s withdrawn. I be- Immigration and Naturalization Service you, just lieve it’s pur- clarification (“INS”)2 finally granted the petition 1-130 poses so that my file, Ms. Fontova’s and February of 2002. record, as far as the paperwork or [sic] will be clear.
On Chen and her attor- *4 ney appeared before IJ for a continued In that same hearing, Chen testified removal proceeding. During proceed- that that the contents of asylum application her ing, following dialogue occurred: false, were and that the information she Judge to Ms. Calillo [Chen’s counsel] provided to an officer in an inter- And, counsel,
Q: you off the record view in of 1999 was false. She fur- you indicated to me that have reviewed ther admitted that and birth tapes. I Judge was not the starting certificates provided she of- your this understanding case and is this false, ficer were and that she they knew [application] previously has been with- were false when she them. Chen drawn, abundantly to be but cautious in China, was not married in nor did she have case, you this going to withdraw the any children in China. Chen confessed application? that actually she was married Ping to Yang, whom Yes, entering
A. met after Your honor.
United couple States. The in married the United States in October Judge to Ms. [government Fontova counsel] Chen has no children. She testified also
Q. Fontova, you Ms. your indicated that the information in in- file, file, my well as does not indicate dicating that she feared the gov- Chinese there has been a withdrawal. Is ernment’s birth policy control was false. that correct? questioned The IJ Chen: A. The such, notes didn’t indicate Q. Well, ma'am, how am I going to Your honor. you today
believe you’re married to gentleman this not for getting an immi- Judge to Ms. Calillo gration benefit you lied, when have in Q. So today, as of I’m showing, Ms. my opinion, get your per- visa as a Calillo, that asylum application has former, you have lied to the indicated, been withdrawn as that’s what in officer Anaheim get asylum, it you are requesting. you’ve looks like lied stay here on a number of occasions. How do I know Ms. Calillo to Judge marry didn’t guy just
get green card because he ais citizen? 2. The INS 2002, was abolished on March Security land Act of Pub.L. No. 107- and its functions 296, were transferred to 2135, the De- 116 Stat. partment of Security. Homeland See Home- waived, a visa I because when I sentation to obtain could be sorry I’m did that A. States, asylum applica- I no the a fraudulent in the United had was first those people I should do and tion could not. IJ found that Chen idea what asy- do order a false me was what should told They up lum, made all the remain here. had notice of the con- that Chen provide me to sequences for me and wanted stories name, they so that appli- name in China Subsequently, the IJ denied Chen’s They for me. up story inadmissibility pursu- make
can cation for waiver of 1182(i). me to memorize all details asked ant to 8 She denied adjustment to tell them the the statement of status. story during the interview. The IJ that “a later recantation of stated story asylum appli- of an which is basis confusing, additional Although somewhat cation waive the that a frivo- does not fact during testimony appears to indicate application was filed.” BIA af- lous interview both first 1-130 March opinion. firmed without and her second 1-130 interview the truth: February of she told *5 II had not been married China and result, a had no children. As an
that she OF STANDARD REVIEW investigation into her marital sta- overseas agency’s de an We review novo instigated subsequently and con- tus was a application of statute. Cervantes-Gon never been married firmed Chen had (9th INS, 1001, F.3d 1004 zales 244 had no children. and China Cir.2001). apply Chevron deference 2002 April At the conclusion of the hear- interpretations of permissible and uphold that she ing, the IJ indicated believed by agency. INS v. the statute See love, was out of Chen’s current 415, 424, 526 U.S. 119 Aguirre-Aguirre, and asked counsel to brief issues of (1999). 1439, 143L.Ed.2d 590 S.Ct. a frivolous appli- whether Chen submitted eligible cation and whether she was III 1182(i). §
waiver under 8 U.S.C. Under 8 1182(a)(6)(C)(i), who, “[a]ny § alien U.S.C. DISCUSSION by willfully ma- misrepresenting fraud or a statute, application asylum The frivolous (or fact, sought has procure terial seeks 1158(d)(6),provides: § 8 U.S.C. visa, has procure procured) or other documentation, Attorney or into the admission Unit- If the General determines knowingly or other under made a frivolous ed States benefit an alien has An has is inadmissible.” alien the alien chapter this pursuant of may provision paragraph seek waiver this the notice under received 1182(i), (4)(A), § permanently October of alien shall be 8 U.S.C. 1-601, seeking ineligible any filed an such benefits under of a final chapter, the date of waiver. effective on such determination 23, 2003, February the IJ entered On IJ, “only applies if a final order provision after This her oral decision and order. finds an tapes, specifically [BIA] found that reviewing specifically [IJ] knowingly filed a frivolous application for alien Chen did not withdraw her § 8 C.F.R. 1208.20. application.” 1999. She fur- asylum on November its is “if although misrepre- An ther concluded deliberately is requires material elements fabricat- tion. The statute that the alien required “knowingly notice ed.” Id. The under 8 made added). 1158(d)(4)(A) asylum.” (emphasis is: “At the Further- time of more, 1208.20, regulation C.F.R. asylum, an the Attor- governing the determination as to whether ... ney General shall advise the alien of frivolous, pro- is privilege being represented by coun- applications vides: “For filed on or after consequences, sel of the para- under applicant subject (6), graph knowingly filing a frivolous provisions only of[8 U.S.C. if ] asylum.” application for a final immigration judge or Chen raises a novel issue to this Court: the Board of Immigration Appeals specifi- Whether the withdrawal of an cally finds that the alien knowingly after it is filed but before final order is frivolous asylum application.” (emphasis by an entered IJ renders irrelevant a sub- added). The BIA recently observed that by an sequent finding applica- IJ that the Attorney General stated that pur- tion was frivolous. Our answer to this pose regulation of this “carry[ was to out ] question negative. is in the one of the central principles warning We believe that the I-589’s process 1998; reform begun in to discour- penalty making about the a false state- age applicants making patently ment, warning penal- the I-589’s about the Y-L-, claims.” In re 24 I. & N. Dec. ty application,3 a frivolous (BIA 2007) (citation quotation consequences the notice of omitted). marks that must be argues, incorrectly, we believe *6 petitioner by pursuant issued to a an IJ to the comments to 8 C.F.R. sup- 1208.20 1158(d)(4), support all the U.S.C. con- port argument petitioner underlying that the purpose clusion of the punished” “should not be for withdrawing prevent statute is to petition- application. applicable The com- lying ers from to the United gov- States ments the Federal Register state: ernment in to obtain benefits under A commenter suggested that an the INA. received Chen both of the writ- applicant should punished not be for vol- warnings. ten In addition to the written untarily withdrawing an applica- warnings, received a lengthy warn- tion, and that Department should IJ, yet, from the in the face of all adjudicators that, advise before finding admonishments, of these she asked the IJ that an individual appli- filed frivolous to application asylum. consider her cation, they should consider the fact that In addition to the warnings numerous applicant may an not have been able to petitioners, to the language of 8 afford to retain counsel for advice on the and its implementing legal strength of an asylum claim. The regulation support our belief that with- regulation current does not contain any drawing an application does not bar an IJ provisions that punish applicant an making a frivolousness determina- withdrawing an application. signature 3. We page note that the Asylum on the 2007 Withholding of Removal version of the 1-589 warnings contains the (2007), http://www.uscis.gov/ available at adds, given may to Chen and "You not avoid (follow portal/site/uscis "Immigration Forms” finding simply a frivolous because someone hyperlink; “Application then follow Asy- provide advised to false information in Withholding lum and hyperlink). of Removal” your 1-589, asylum application.” Application penalties cause would be no there to withdraw may choose Any applicant doing so. prior time to at application an however, decision; a withdrawal
final at Id. 476-77. from seek- the Service preclude does Lazar, appli- petitioner filed two if he or she is of the alien ing removal Id. In the asylum. cations for at fact that The or removable. deportable first, persecution Iraq he claimed legal have hired may not applicant He re- political account of his activities. factor, among oth- in his may be one claim second peated counsel he new Id. Prior after counsel. judge or the obtained ers, immigration that an asylum hearing, his he a continu- sought to determining may when consider Board pending the outcome of his 1-130 ance op- sufficient applicant had whether mar- for a visa on his based any discrepan- to account for portunity riage to a naturalized U.S. citizen. Id. claim. implausible aspects cies or however, not contin- hearing, (Dec. 2000). 76,121, 76,128 Fed.Reg. time, at and the to proceeded ued language sup- that this do not believe filing a frivo- explain consequences agree with the position. We ports Chen’s petitioner. Id. Af- lous argument that Chen is not government’s warnings, receiving ter withdrawing appli- being punished applica- affirmed that the contents of his not for “punishment” with- cation. “entirely tion were accurate” and declined years after several drawing any changes make it, the frivo- rather is for in re- During healing, at Id. place lying first lous sub- sponse questions documents being officer after warned government, petitioner’s mitted received notice of he had untruthful consequences. admissions showed been inas his appli- in his second as well consequences testimony. Id. pursue chose file and cation warnings. spite nearly the hearing The IJ continued *7 the year whether or not to consider recent decisions of next consider the appli- a frivolous petitioner had submitted addressing the our sister circuits two of his petitioner cation. Id. The withdrew asylum applica- of withdrawal of effect contin- asylum prior finding. The to a prior tion adjust- hearing, requesting ued instead Circuit, Gonzales, 500 Lazar v. Sixth on to a ment of based his status (6th Cir.2007), peti- held 469 F.3d contin- Id. at 473-74. At the U.S. citizen. tioner’s peti- the acknowledged the IJ hearing, ued asylum application did withdrawal his withdrawal, but nevertheless tioner’s held the for the IJ deter- not obviate need the had petitioner mine whether his eligible and was therefore not Contrary be deemed frivolous. The adjustment should at 474. of status. Id. contention, the IJ’s friv- “a recantation [petitioner’s] prompt IJ held that does not a court asylum applicant prevent not mooted the olousness frivo- Indeed, deeming from if application. of his withdrawal The IJ reasoned: lous.” Id. law, every petitioner seek- that were general under INA would have an There to be deterrent relief needs they applicants that potential asylum all lie be- incentive to in their submissions alleging cannot lie to Court or to the Immi- that birth control officials forced gration or there would Service be seri- her to have an abortion. at Id. 178. In consequences. It specific ous also is a August year, gave of that peti- in each case before the deterrent Court tioner both a warning written and an oral Service, or the and that is to preclude as to the consequences of filing a frivolous particular person lying. Once asylum application. After acknowledging done, the lie is he shot himself in the that she understood the consequences, the foot. And the fact that he then confess- petitioner agreed everything in her way es the error of his is little and no application was true and accurate. Id. at import to the Public policy Court. dic- January petitioner tates that recantation not be a viable her application withdrew and filed a new option. But even if were a viable one, admitting that she had lied about her option, the respon- Court notes birth control claim in the application. first dent did not recant his In an April 2003 hearing, petitioner respondent got caught with his hand acknowledged again that she had lied. Id. jar. the cookie What he did not know (1) the Government had evidence that Second Circuit: would determined that demonstrate that his application was procedural received the safe Y-L-, fake, This, phony and fraudulent. guards described in In re 24 I. & N. course, involuntary (BIA would be an recanta- (2) 2007);4 Dec. 151 concluded tion, why any Court cannot see contained deliberately recantation, involuntary if you want to fabricated material Zheng, elements. that, call it preclude would a finding of F.3d at 180. The court then remanded the frivolousness. It would make a mockery case to the BIA “to consider antecedent system. event, of this But in any issues concerning applicability recant, respondent just did not he con- frivolousness statute to an asylum applica fessed and it was a forced at confession tion that is filed and then withdrawn be that. fore a decision on its merits.” Id. at 181. Id. at 474. agreed The Sixth Circuit with The Second Circuit asked the BIA to con at IJ. Id. 476-77. specific sider two questions, one of which is relevant to the at ease bar: “Is the IJ’s (2d
In Zheng Mukasey,
the first instance. that I cannot
join in that portion majority opinion provides
that itself an answer to that ques- See, e.g., majority
tion. opinion at 940. I disagree majority
do not with the opinion’s analysis upon
answer or the which it is
based, but if think we we should let the
agency question, answer the then believe
that we should wait to hear that answer
the agency providing before our own. America,
UNITED STATES of
Plaintiff-Appellee, Douglas COPE, Jr., D,
Gordon
Defendant-Appellant.
No. 06-50441.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June
Filed June