F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B A L D E V S I

N G H M A

N HA N I , P etitioner,

v

.
W I L L I AM P. B AR

R , Attorney General, Respondent. N o. 17-72231

Ag ency No. A097-545-859

OPI NI ON

O n Petition for Review of an Order of the B oard of I

mmig ration Appeals

Submitted October 22, 2019 * Seattle, W a shing ton

F iled November 25, 2019

B efore: Richard R. Clifton and Sandra S. I kuta, Circuit J udg es, and J ed S. Rakoff, * * District J udg e.
Opinion by

J udg e Clifton

* T h e p an el u n an im o u s ly

co n clu d es th is case is su itab le f o r d ecisio n
w ith o u t o ral arg u

m en t. S ee Fed . R. App . P . 3 4 (a)(2 ).

** T h e Ho n o rab le J ed S

. R ak o f f
, Un ited States District J u dg e f o r th e So u th ernDistrict o f

New Yo rk , sittin g b y

d esig n atio n

.M A N HA N I V

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SUMMARY * * *

Im m igration

The panel denied B aldev Sing h M a n h ani’s p e tition for review of a d e c i s ion of the B oard of I mmig ration Appeals denyi n g a waiver of d eportation under 8 U .S.C. § 1227(a)(1)(H), based on the frivolous asylum applicati o n bar at 8 U.S.C. § 1158(d)(6), holding that the bar p r e cludes an applicant f

rom r e c eiving all benefits under the I mmig r ation and Nationality

Act.

Section 1158(d)(6) s tates that if the Attorney General determines that an alien has k n owing ly made a frivolous applicati o n fo r asylum and the alien has received the notice under paragraph (4)(A), the alien shall b e p ermanently inelig ible for any

benefits under this chapter.

M a n h a n i a r g u e d t h at the I mmig ration J udg e ’s unconteste d finding that he filed a frivolous asylum app l i c a t ion did not bar him from receiving a waiver under § 1158(d)(6) because the bar applied to a sylum benefits only

. The panel disag r eed. I n lig ht of the plain lang uag e o f the Act, this ci rc u i t ’s precedent, and that of other circuits, the panel concluded that the p hrase “under this chapter” refers to Chapter 1 2 of Title 8 of the U.S. Code (the I

NA), the chapter in which the section is found. The panel r e

j e c t e d Manhani’s contention that the phrase a pplied to o n l y the subchapter or section c ontaining the frivolous asy

lum bar. The panel therefore held that, as a result of the f

rivolous asylum a

pplication finding
, Manhani is

*** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.M A N HA N I V

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barred from receiving a ll benefits under the I NA, including a waiver of deportation.

COUNSEL
Cornell Kirby , Seattle, W ashing ton, for Petitioner.

L aura H alliday H i ck ein, Trial Attorney ; Shelley R. Goad, Assistant Directo r ; O ffice of I mmig r ation L itig ation, Civil Division, United States D epartment of J ustice, W ashingt o n, D.C.; for Respondent.

OP INION

CL I F TON, Circuit J udg e :

B a ldev Sing h Manhani petitions for rev i ew of the decision of the B oard of I mmig ration A p p eals (“B I A”) d enying him a waiver of deportation under the I mmig rati o n and Nationality Act (“I NA”) § 2 37(a)(1)(H), 8 U .S.C. § 1227(a)(1)(H). Manhani argues that the I mmig r ation J udg e ’s ( “ I J ”) uncontested f inding th at he filed a frivolous

as y l u m application does not bar him from receiving such a waiver under I

NA § 208(d)(6), 8 U.S.C

. § 1 1 58(d)(6). W e disag ree.
Section 1158(d)(6) states:

I f the Attorney Gene ral determines that an alien has knowing ly m a d e a frivolous application for asylum a nd the alien has received the notice under paragraph ( 4 ) ( A ),M A N HA N I V

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the alien shall be p ermanently i n elig ible for any benefits under this c h apter, effective as o f the date of a final determination on such application.

I N A § 208(d)(6), 8 U.S.C. § 1158(d)(6). Manhani does not contest the I J ’s finding that he knowing ly f ile d a frivolous asylum application. Rather, he c o ntends that filing a frivolous asylum a pplication renders him inelig ible for asylum benefits only
, not all immig ration benefits. This case thus raise s the qu es tion of the meaning of the phrase “this chapter” in § 1 158( d ) (6 )

. W e conclude that “this chapter” refers to Chapter 12 of Title 8 of the U .S. Code, the chapter in which the section is found. Theref o r e , a s a result o f the frivolous asylum application finding
, Manhani is barred from r eceiving all benefits under the I

NA, including a waiver o f deportation. According ly
, we deny the petition for review.

I. Background

B a ldev Sing h Manhan i i s a n ative and citiz en o f I n dia who first entered the United States in 1998. I n 1999, Manhani filed an asylum application under a false name, “ Su k h d ev Sing h,” and a f

alse date of birth. I n 2002, Manhani withdrew this application and w as g ranted voluntary departure by a n I J

. Manhani then entered C an a d a and filed a Canadian asylum application under h is real name. This application contained different f acts from those listed in the 1 999 U .S. application. The Canadian asy

lum application was denied in 2003.

I n 2004, Manhani ag ain entered the United States and was stopped by immig ration officials. The former I mmig r ation and Naturaliz ation Servic e i ssued him a notice to appear charg ing him with removability under I NA § 212(a)(6)(A)(i),M A N HA N I V

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8 U.S.C

. § 1182(a)(6)(A)(i). Manhani submitted a second U.S. asylum application at this time, using his real name, but omitting any reference to his previous U.S. asy l um application under the name “Sukhdev Sing h.” B ased o n this second application, Manhani w a s g ranted asylum in 2005, and became a lawful permanent resident in 2008.

I n 2 013, Manhani p rovide d h i s leg al permanent resident card to U.S. immig ration officials at the Canadian b order. At the time, there was a “ lookout” in the computer sy stem noting that the information for Manha n i matched that of “Sukhdev Sing h.” I n the sworn interview that followed
, M anhani admitted to submitting the false 1 9 9 9 asylum application. DHS then issued a notice t o a ppear charg ing Manhani with

r e m o v a l u n d e r IN A § 2 1 2 ( a) ( 6 )( C ) ( i )
, 8 U

. S

. C

. § 1182(a)(6)(C)(i). DHS later amended the charg e to removal under I N A § 237(a)(1)(A), 8 U.S. C

. § 1227(a)(1)(A), I N A § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a) ( 6 ) ( C)(i), a nd I N A § 212(a)(7)(A)(i), 8 U.S.C. § 1182(a)(7)(A)(i).

I n 2016
, t h e I J issued a written decision f inding that Manhani filed a frivolous asylum application and holding that he was thus b arred from receiving benefits under the I NA. On appeal, the B I A adopted and affirmed the I J ’s decision. The B I A wr o te that Manhani had n ot meaning fully contested either h is removability or the I J ’s d etermination that he filed

a frivolous asylum application a n d held those issues to be waived. The B I A o nly a ddressed t h e i ssue of whether the frivolous as y

l u m a p p l i c ation finding p recluded Manhani from seeking a § 1227(a)(1)(H) waiver, and concluded that, under § 1158(d)(6), Manhani was p ermanently inelig ible fo r “ a n y benefit under the Act.” Manhani filed this petition for r eview in Aug ust 2017.M A N HA N I V

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II. Discussion

Section 1 158(d)(6) sta t es that “[ i] f the Attorney General determines that an ali e n has knowing ly made a frivolous

a p p l i c a tion for asylum

. . . the alien shall be permanen t l y inelig ible f

or any b e n ef

i ts under this chapter.” I N A § 208(d)(6), 8 U.S.C. § 1158(d)(6). Manhani contends that the phrase “this chapter” in § 1158(d)(6) refers to something other than Chapter 12 of Title 8 of the U .S. Code, the chapter in which t h e s e ction is f

ound. W e are not persuaded b y this argument, as the plain lang u ag e of the Act, our precedent, a nd that of other circuits do not support it.

The provision in question is found in Part I (Selection Sy stem) of Subchapt e r I I (I mmig ration) of Chapter 12 (I mmig r ation and Nationality ) o f Title 8 (Aliens a nd Nationality

) of the U.S. Code. The I NA co v e r s all o f Chapter 12 of Title 8 of the U .S. Code, running from section 1 1 0 1 to section 1537. I

NA, 8 U.S.C. § § 1 101–1537. The phrase “this chapter” most c learly refers to a chapter level division, r ather than a subchapter or section level one. Thus, the o rg aniz ation of the Code demonstrates that “this chapter” refers to all of Chapter 1 2 and consequently the entirety o f the I NA.

This co urt has consistently interpreted the phrase “this chapter ” i n t h e I

N A to r efer to Chapter 12 of Title 8 of the U. S

. C o de. F or e x ample, in interpreting 8 U .S.C. § 1231(a)(5), which states “the alien is n ot e l i gi ble and may not apply f

o r any relief under this chapter,” we noted that “‘this c h a p t er ’ refers to c hapter 12 of title 8 of the U.S. Code.” See Perez-Guzman v. Ly n c h
, 8 3 5 F .3d 1 0 66, 1072 (9th Cir. 2016). Similarly
, in reading 8 U.S.C. § 11 0 1(b) which s t ates “[ a] s used in subchapters I and I I of thisM A N HA N I V

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chapter,” this court altered the quotation to read “[ a ] s used in subchapters I and I I of this chapter [ i.e., chapter 1 2 ]

. ” See Montero-Martinez v

. Ashcroft
, 277 F .3d 1137, 1145 (9th Cir. 2002) (last formattingchang e in orig inal).

More specifically
, we have c onsi s t e ntly read the phrase “this chapter” in § 1158(d)(6) as referring to C h a p t e r 12 o f T i t le 8 in its entirety

. T his court has noted t h a t a “determination that an a ppli c ant filed a frivolous asylum application renders the a

pplicant permanently inelig ible for immig ration relief.” Kalilu v. Mukasey
, 548 F .3d 1215, 1217 (9th Cir. 2008) (per curiam). L ikewise, we hav e p r e viously upheld a B I A determination that a frivolous asy lum application created a st atutory bar ag ainst a p etitioner

r e c eiving an adjustment of status or a § 212(I ) waiver

. S e e Kulakchyan v. Holder, 730 F .3d 993, 995 (9th Cir. 2013) (per curiam). These decisions demonstrate that the phrase “this chapter” refers to Chapter 12 in its e n t i rety , and that a frivolous asylum application finding bars a petitioner from receiving all benefits under the chapter.

F inally
, other circuits have also consistently followed this understanding

. Multiple circui t s h ave read the phrase “this chapter” in other sect i o n s of the I NA, notably § 1231(a)(5), to refer t o Chapter 12 o f Title 8 of the U.S. Code. See, e.g., Garcia v. Sessions
, 856 F .3d 27, 3 2 ( 1 s t Cir. 2017), cert. denied
, 138 S. Ct. 2 6 52 ( 2018) (replacing the words “this chapter” in § 1231(a)(5) with “chapter 12 Title 8 of the U.S. Code”); Cazun v. A tty. Gen. U.S.
, 856 F

. 3d 249, 254 ( 3d Cir. 2017), cert. denied sub n om. Cazun v. Sessions
, 138 S. Ct. 2648 (2018) (statin g t h at “this chapter” in § 1231(a)(5) “refers to Chapter 12 of T itle 8 o f the U.S. Code”); Mejia v

. Sessions
, 866 F .3d 573, 5 8 0 (4th Cir. 2017) (replacing the words “this chapter” in § 1231(a)(5) with “Chapter 12 of TitleM A N HA N I V

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8”). Other circuits have a lso specifically read the phrase “this chapter” in § 1158(d)(6) to refer to Chapter 12 in its entirety
, with the result that a frivolou s asylum application finding leads to a bar on all immig r ation ben e f its. See, e.g., Liu v

. U.S. Dep’t o

f Justice , 455 F .3d 106, 112 (2d Cir. 2006) (“[ A] final d eci s i o n that an asylum application is frivolous permanently forecloses the p e titioner from all benefits under the immig ration laws of this coun t r y

. ” ); Muhanna v

. Gonzales, 399 F .3d 582, 588 (3d Cir. 2005) (not i n g that 8 U.S.C. § 1158 (d)(6) r enders a n al i en “‘inelig ible for any benefits’ under the immig ration laws”); Scheerer v. U.S. A tty. Gen., 445 F .3d 1311, 1317 (11th Cir. 2006) (stating that if an alien knowing ly files a frivolous application the a lien is “permanently inelig ible to receive immig rati o n b enefits”); Alexandrov v. Gonzales, 442 F

. 3d 395, 397 n. 1 (6th Cir. 2006) (“A finding of f

rivolousness is comm o n l y r e ferred to as the ‘death sentence’ of immig ration proceeding s.”).

Given the plain lang uag e of the Code, our precedent, a nd that of other circuits it is clear that the phrase “this chapter,”

as used in § 1158(d)(6), refers to Chapter 12 of Title 8 of the U

. S

. C o d e

. C o n s e q u e n t l y, t h e IJ ’ s u n c h a l l e n g e d determination that Manha n i filed a frivolous asylum application renders him inelig ible for all immig ration benefits

un d e r C hapter 12. Chapter 12 covers five subchapters, including S u bchapter I I (I mmig ration), w hich contains § 1227(a)(1)(H). Thus, Manhani is inelig ible for a waiver of removal under § 1127(a)(1)(H).

III. Conclusion

The p etition for revie w is d enied. Under § 1158(d)(6), a finding that a petitioner filed a f rivolous application makes t h a t person inelig ible for a ll b enefits under Chapter 12 o fM A N HA N I V

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Title 8 of the U.S. Code. The I J determin e d that Manhani f i l ed such an application, and he is therefore barred f r o m receiving a waiver of deportation.

P ETITION DENIED.