NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0376n.06 No. 10-4270 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
TODOR D. ALEXANDROV, ) ) P etitioner , ) ON REVIEW FR OM THE v. ) BOARD OF IMMIG RATION ) AP P EALS ERIC H. HOL DER, JR., ) Attor ney Ge neral, ) ) Respondent. )

)
BEFORE: SUHRHEINRICH, STRANCH and DONALD, Circ uit Jud ges.
SUHRHEINRICH, Circuit Judge. Petitioner Todor Al e xa n d r o v ( Pe ti ti o ner) seeks judicial revie w of the decision of the Boa rd of I mmigration Appea ls (B I A) decla ring him statutorily ineligible for adjustment of status beca use he had previously filed a frivolous application for asy lum.
For the re asons stated he rein, we AF F IRM

. I. Background Petitioner is a native and citizen of Bulg aria

. He was admitted to this country in Dec ember 1996 on a nonimmigra

nt stude nt visa to attend colleg e at Mc Nee se State Univer sity in L ouisiana.
He did not attend the school. I n May 1997, Petitioner filed an administrative application for asy lum based on alleg ed b ea t i n gs and perse cution he suffe red as a member of Bulg aria ’s Omo I linden minority political g roup. The I mmigra tion and Natura liz ation Service (I NS) g rante d his application in September 1997.I n May 1998, I NS terminated Petitioner’s asy lee status afte r concluding that documents submitt ed in support of hi s asy lum application were fraudule nt. Petitioner was iss ued a N otice to Appea r in immig ration court a

nd char g ed with re movability under 8 U .S.C. § 1227(a )(1) (C)(i) for fail i n g t o comply with the t erms of his student visa. I n immigra tion court, P etitioner admit ted all fac tual alleg ations and conce ded remova bility

. He added that he wished to rene w his application for
asy lum and withholding of r emoval, and a lso seek adjustment of status based on his se lection as a benef iciary of the diver sity

visa lottery

. On September 4, 1998, Petitioner filed an updated asy lum application with the immigra tion judge (I J ). Be fore he did so, the I J issued th e re q u i s i t e war nings – both orally and in writing

– reg arding the ramifications of fili ng a frivolous asy lum application. L ike his orig inal application, Petitioner’s rene wed application claimed he had been beate n by Bulg aria n authorities beca

use of his membership in Omo I linden. He provided sever al documents in support of his asy lum application, including me dical ce rtificate s corr oboratinghis rece ipt of treatment a fter the beating s, a subpoena
to appea r in Bulg aria

n court, and a court decision convicting him of membership in the Omo I linden
g roup and sentenc ing him in abstentia to five y ear s in prison. Although he said that his mother had mailed him t h e rec ord of judgme nt from Bulg aria , he claimed to have persona lly obtained the medical cer

tificates (two from a hos pital in L om, Bulg aria , and one from a hospital in Montana, Bulg aria ) and subpoe na. Depa rtment of State Ex ecutive Direc tor J ohn McGrude r, J r. (McGr uder) testified on speake r phone at the i m m i gra t i o n court hear ing. Although he admitted having no persona l knowledg e of
P et i t i o n er ’s case , he rec ited the conclusions of two consular memoranda from the United State s Embassy at Sofia, Bulg aria that the documents provi d e d in s u p p o r t o f Petitioner’s asy

lum application

2wer e fra

udulent. He said that he did not know the authors of the memorand a persona lly but had spoken to one, vice consul Mike Hazel, who “conf irmed ” t h at t he consular memoranda wer e “ac cura te.” A.R. at 663-64. The I J cre dited McGrude r’s testimony and the consular memoranda and conclude d that Petitioner had produce d fra udulent documents as a materia l component to his asy lum application, bar

ring him from all forms of r equeste d relief

. 1 Petitioner appea led the I J ’s decision to the Boa rd of I mmigration Appea ls (B I A) and the BI A aff irmed. Petitioner then appea led to this Court. We r ever sed for two rea sons. First, we held that Petitioner was deprive d of an opportunity to respond to DHS’s arg uments when he was not prese nted with one of the two consular memoranda until the day of his hear ing. Alexandrov v. Gonzales , 442 F.3d 395, 407 (6th Cir. 2006) (her einaf ter, Alexandrov I

). Second, we found that the I J ’s substantive relianc e on the consular memoranda violated Petitioner’s due proce ss r ights and could not suppor t

a finding that Petitioner’s asy lum application was fr i v o l o u s . Id

. We observe d sever al specific problems with the memoranda , including their failure to identify the scope and m et h o d o f the investiga tion conducte d and details about the investigator. Id

. We w ere troubled, in particula r, by the lack of information reg arding the investigator’s identity , cre dentials, and information source s.

8 U.S.C. § 1158(d)( 6) states that an alien found to ha ve “knowing ly made a frivolous application 1 for asy lum

. . . shall be per manently ineligible f

or any benef

its

. . . .” I n turn, 8 C.F.R. § 1208.20 provides that an i m m i gration judge or the Boa rd of I mmigration Appea ls may deter mine that an immigra nt has filed a frivolous application for asy lum if it finds t hat “a

ny of its material e lements is delibera tely fabr icated.” 8 C.F.R. § 1208.20. “Such finding shall only be made if the immigra tion judge or the Boa

rd is satisfied that the applicant

. . . has had sufficie nt opportunity to acc ount for any discrepa ncies or implausi b l e as pects of the claim.” Id

. We have noted that “[a] finding of frivolousness is commonly re fe rr ed to as the ‘death sentenc e’ of immigra tion proce eding s.” Alexandrov v. Gonzales , 442 F.3d 395, 397 n.1 (6th Cir. 2006) (citing Muhanna v. Gonzales , 399 F.3d 582, 588 ( 3d Cir. 2005)). 3Id

. We vaca ted the frivolousness finding of th e BI A and rema

nded for a differ ent I J to “fur ther consider[]

. . . Alexandrov’s adjustment of status to a lawful perma nent resident

. . . .” Id

. at 397-98. 2
Re ma n d e d p r o c e e d ing s commence d pursuant to our direc tion. At the master cal e n d a r h e a r in g befor e the new I J in May 2007, Petitioner withdrew his application for asy lum and indicated that he wished to proce ed solely on his adjustment of status claim. DHS contempora neously informed Petitioner that, notwiths t an d i n g the withdrawa l of his application, its position would rema in that beca use the app l i ca tion had been frivolous, Petitioner had perma nently forf

eited his rig ht to adj u s t m ent of status. The I J ruled that all documents be exchang ed within fourtee n day s of the merits hear ing. At the merits hear ing held in J uly 20 0 8 , P eti tioner, a medical doctor marrie d to a United States ci tiz en and the fathe r of two United States citizen children, testified in support of his entitlement to adjustment of status. Consist ent with DHS’s position at the master cale ndar hear ing,
Moses P. Nar ensky (Na

rensky ), an As s i s tant Attaché and Special Ag ent with I mmigra tion and Customs Enforc ement (I CE), stationed in V ienna, Austria, also testified. Nar ensky explained tha t he had persona lly trave led to Bulg aria to authentica te the documents Petitioner provided in support of his asy lum application and that this investigation had deter mined the documents to be fra udulent.
Nar ensky ’s Offic ial Report of I nvestig ation (Report) was admitted into evidenc e. Reg arding
Nar ensky ’s investigation into Petitioner’s purported medical cer tificates, the I J acc urate ly summarized the Report’s support and c onclusions:

The Report indicates that to authentica te the medical cer tificates purportedly issued by the L om Hosital, A g ent Nar ensky spoke, throug h an interpr eter , with Dr.

We a lso rever sed the B I A’s adve rse c redibility finding ag ainst Petiti oner, f inding that it was not 2 supported by

substantial evidence

. See id. at 407-08. 4Plamen Tzekov, the Dire ctor of the L om Hospital, who had served in that capa city

since 1991. Dr. Tzekov informed Ag ent Nar ensky that both o f the medical cer tificates

. . . wer e fra

udulent. Dr. Tzekov told Ag ent Nar ensky that neither of the doctors named in [P etitioner’s] medical cer tificates ever worke d at the hospital. Dr. Tzekov further indicated that althoug h both doctors wer e alleg edly o rt hopedic s u rge o n s, L om Hospital had not hired its first orthopedic surg eon until 2003. Fur thermore , Dr. Tzekov stated that while the stamp on both medi ca l ce rt ificate s rea ds “L om Reg ional Hospital”, the stamp actua lly used by L om Hospital since 1982 rea ds “Municipal Hospital L om.” Dr. Tz ekov further showe d the hos pital’s actua l stamp to Ag ent Nar ensky

. The Report indicates that to authentica te the medical cer tificate purportedly issued by the Montana Hospital, Ag ent Nar ensky spoke, throug h an interpre ter, with Dr. Mag arita Nitzov, Direc tor of the Montana Hosp i t al , who has serve d in that capa cit y since 1996 and has been a hos pital employ ee since 1976. Dr. Nitz ov told Ag ent Nar ens k y that the Montana medical cer tificate was fra

udulent beca

use the doctor l i s t ed o n the cer

tificate never worke d at the hospital, the stamp on the cer tificate belong s to a hospital in Sofia, not the Montana Hospital, and the hospital name on the me dical ce rtificate is incorre ct. A.R. at 63. On the issue of t h e s u b poena purportedly issued to Petitioner, the I J summarized
Nar ensky ’s Report as f

ollows: The Report states that Ag ent Nar ensky trave led to the National I nvestig ative Service o ff

i ce in Montana that alleg edly issued the subpoena for [P etitioner] and spoke with Deputy Chief Geor g e Nicolov. Mr. Nicolov told Ag ent Na rensky , throug h an interpre ter, that while the format for t h e s u b poena was corr ect, had the subpoena actua lly been serve d, the bottom portion would have bee n d et ac h ed and reta ined with the case file. I nstead, t h e b ottom portion of the subpoena was still attache d. Mr. Nicolov chec ked an au t o m at ed databa se, which he stated would contain a rec ord of the subpoena if it wer e actua lly issued to [P etitioner]. Mr. Nicolov indicated to Ag ent Nar ensky that there was no rec ord of any case involving [P etitioner] in the automated databa se. A.R. at 64. Finally , the I J noted the following in the Report with reg ard to t h e al leg ed rec ord of judgme nt Petiti oner r ece ived from his mother:

Finally , the Report indicates th at Agent Nar ensky trave led to the L om Courthouse to au t h enticate a document which purports to be a court decision sentenc ing [ Petitioner] to five y ear s in prison and im posing a fine f o r hi s activities with Omo I linden. Ag ent Nar ensky was not permitted to enter the courthouse under

5Bulg aria n law as he was a fore ign l aw en forc ement ag ent. The [Foreig n Service National I nvestig ator] FSNI acc ompany ing Ag ent Nar ensky enter ed the courthouse to authentica

te the document. Ag ent Nar ensky repor ted that the FSNI told him that the FSNI spoke with Clara L ubenova, the L om Court Ar ch ives Chief since 1994, who indicated the document was fra udulent. The FSNI told Ag ent Nar ensky that Ms. L ubenova believed the document was fra udulent as the document was entitled “De cision” and not “Sentenc e,” as an authentic document would have been; althoug h the prosec utor V. Nik o l o v ex ists, the signature is not that of V. Nikolov and V. Nikolov’s title was not Chairman as of the date of the document; there was no rec ord in the computer databa se of a case involving [P eti t i o n er ]; case numbers had not re ac h ed t h e number 135 as of the date of the document; and the jury members “Strateva ” and “Ar

naudov,” Secre tary “Da

nailov,” and Prosecutor “Ge org iev” have never been me mbers of the Court of L om. A.R

. at 64-65. Despite having rec eived Nar ensky ’s Report approximately one month befor e the merits hear ing and be i n g o n n o t i ce since at least May 2007 that DHS would claim hi s documents

wer e fra udulent, Petitioner failed to offe r convincing explanations for the discrepa ncies reve aled in
Nar ensky ’s investig ation. 3 Attentive to the conce rns we raised in Alexandrov I reg arding the reliability of unsupported hear say evidenc e, see Alexandrov I , 442 F.3 d at 4 0 4 -07, the I J declined to aff ord any weig ht to Nar ensky ’s investigative conclusions reg arding Petitioner’s alleg ed rec ord of judgme nt. She found that beca use Nar ensky was not allowed inside the courthouse and rec eived his information secondhand from the For eig n Service National I nvestig ator who spoke with the L om Court Arc hives Chief, his r ecor ded conclusions wer e “double hear say ” and “ inhere ntly less reliable .” A.R. at 73. B ased

on Nar ensky ’s Report and testimony reg arding Petitioner’s purpor t ed medical cer tificates and subpoena, howeve r, the I J found that Petitioner had previously filed a fr i v o l o u s appli cation for
asy lum and was statutorily ineligible for an adjustment of status. On appea l, the BI A adopted much

On appea l, Petitioner claims he was not g iven appropr iate time to respond to D HS’s alleg ations. 3 Be cause Petitioner had been on notice of DHS’s position for at least a y ear and rec eived Nar ensky ’s Report further in a dvance of the merits hear ing than even the I J require d, we reje ct this a rg ument. 6of the I J ’s rea soning and aff irmed. Now, for a second time, Petitioner asks us to r eview the BI A’s finding that he willfully submitt ed fra udulent documents in support of his petition for asy lum. For the re asons stated, we reje ct ea ch of Petitioner’ s arg uments and deny his petition for review

. II. Analysi s A. Standard of

Review Where, as here , the BI A summarily adopts the opinion of the I J and p ro v i d es ad d itional
commentar

y , we revie w both de cisions. Gilaj v

. Gonzales , 408 F.3d 275, 282-83 (6th Cir. 2005)

. Under established principles of defe renc e, we defe r to an ag ency ’s interpre tations of its own reg ulations unle ss the y are plainly err oneous or inconsistent. Chevron U.S.A., Inc. v. Natural Res.
De f

. Council, Inc. , 467 U.S. 837, 842-43 (1984). The I J ’s finding s of fac t, including th e deter mination that an asy lum application was frivolous, are revie wed under the substantial evidenc e standard and “ar e conclusive unless any rea sonable adjudicator would be compelled to conclude to the contra ry .” 8 U.S.C. § 1252(b)( 4)(B ); see Lazar v. Gonzales , 500 F.3d 469, 475 (6th Cir. 2007).
I f an alien knowing ly files a frivolous as y l um application, he is statutorily ineligible for adjustment of status. 8 U.S.C. 1158(d)( 6); 8 C.F.R. § 1208.20; In re Y -L- , 24 I & N Dec

. 151, 155 (B I A 2007). To support a finding that th e alien has filed such an application, the court must deter mine, by a preponde ranc e of the evidenc e based on circ umstantial or direc t evidenc e and taking into acc ount any plausible explanations provided by the alien, that he deliberately fabr icated materia l elements of his application. See In re Y -L- 24 I & N Dec

. at 158; see also 8 C.F.R. § 1208.20. The penalty for filing a frivolous application will not apply u n l es s t h e alien has been war ned of the
conseque nce of filing a frivolous application. 8 U.S.C. 1158(d)( 6); 8 C.F.R. § 1208.20; In re Y -L- , 24 I & N Dec . at 155, 159-60.

7B. Pr ior vacat ure of the BIA’s frivolou sness f ind ing As a thre shold matter, Petitioner contends that our va catur e of the BI A’s prior f

inding that Petitioner had filed a

frivolous applica tion for asy lum preve nts the I J , the BI A, or this Court from
ag ain adjudicating the issue. We disag ree . W h i l e in Alexandrov I we opined that further consideration of Petitioner’s asy lum application appea red to be unnece ssary , see Alexandrov I , 442 F.3d a t 409, our opinion was clea rly predic ated on the f

act that DHS’s onl y

evidenc e supporting a finding that Petitioner’s application was frivolous was hear say , and relianc e there upon by the I J and the BI A violated Petitioner’s rig ht to due proce ss. See id

. (vac ati n g fr i v o l o usness finding and

rema nding for further proce eding s). I ndeed, the authenticity of a prior asy lum application is always

a rele vant inquiry in proce eding s to deter mine a petitioner’s elig ibilit y for adjustmen t o f s tatus beca use a statutory bar to r elief is ere cted ag ainst those who have filed frivolous applications. See 8 U.S.C. § 1158(d)( 6) (re quiring that an al ien who “knowing ly made a frivolous application for
asy lum . . . shall be per

manently ineligible f

or any benef its”); 8 C.F.R. § 1208.20 (authorizing I J s and the B I A to make a

frivolousness finding on appropr iate evide nce)

. On re mand, the new I J addre ssed t he authenticity of P etitioner’s a pplication anew

without

an y relianc e on the faulty consular memoranda

. I ndeed, in deter mining Petitioner’s statutor y elig ibilit y for relief

, the I J t o o k obvious car e to consider only new evidenc e that satisfied the standards we found lacking in the memoranda upon which the orig inal I J ’s frivolousness finding was based. The I J expressly declined to aff ord any weig ht to Nar ensky ’s investigation into Petitioner’s purported rec ord of judgme nt, for example, finding it “inher ently less reliable ” beca use Nar ensky ’s testimony and Report wer e “double hear say ” acc ounts from the FSNI who was allowed to enter the courthouse. A. R

. at 73. As the I J fairly approa ched the topic of Petitioner’s asy lum application,

8disreg arding the consular memoranda entirely and apply ing strict evidentiar y standards to ensure

re l i ability , we reje ct Petitioner’s claim that the revie w of a materia l element of his elig ibilit y for relief was improper

. C. P etitioner ’s with drawal of h is app lication f or asylum Petitioner also claims that the formal withdrawa l of his application for asy lum s h o u ld preve nt

rec o n s i d er ati on of its authenticity

. As we observe d in Lazar , this contention is “plainly wrong .” Lazar , 500 F.3d at 476, 478 (“[W] ithdrawa l of [an] asy lum application d[oes] not obviate the need for the I J to deter

mine whether his false application should be deeme d frivolous.”). To the contra ry , the act of submitt ing false documents in support of an asy lum a pplication is a lway s rele vant—and
a st atutory bar—to an i mmigra nt’s elig ibilit y to stay in this country , althoug h it does not prec lude the alien from seeking withholding or remova l. See 8 U.S.C. § 1158(d)( 6); 8 C.F.R. § 1 2 0 8

. 2 0,
supra ; Lazar , 500 F.3d a t 475.

D. Evidence supp orting the BIA’s fin din g Assuming this Court rea ches the merits of his claim for ad j u s t ment of status, Petitioner maintains that he is not statutorily barr ed from relief beca use the new I J relied upon an investiga tion just as cursory

and fla wed a s the one we reje cted in Alexandrov I . Ag ain, we do not a g ree . The evidenc e of document fra ud DHS prese nted at Petitioner’s rema nded proce eding s was qualitatively

differ ent than the e vidence it prese nted at Petitioner’s first hear ing. I n Alexandrov I ,

we fo u n d t h at DHS’s orig inal investigation was nothing more than an unreliable hear say acc ount beca use we did not know any rele vant information “aside from the appar ent conclusions of [DHS’s]
my sterious investigation.” Alexandrov I , 442 F.3d at 407. I n particula r, we did not know (1) “who the investigator was or if there was more than one investigation or the qualifica tions of a supposed

9in

v e s ti g a to r [; ]” ( 2 ) w h e ther the memoranda authors themselves “par ticipated in the in

v e s ti g a ti o n s [; ]” (3) “whe ther a Bulg aria

n investigator was used[;] ” (4) “how the investigation was conducte d[; ]” or (5) “who provided the Depa rtment of State with the information from the court, NI S, or hospitals.” Id

. A re v i ew of the evidenc e prese nted at Petitioner’s rema nded hear ing shows that DHS
sy stematically co r

r e c te d th ese defic iencies and that substantial evidenc e supports the BI A’s adoption of the ne w I J ’s finding that Petitioner had filed a frivolous asy lum application. 1. Medical Ce rtificates Nar ensky ’s Report contain s am p l e information on which the BI A’s conclusion that Petitioner’s purporte d medical cer tificates are fra

udulent is a

ppropriate ly based. The conce rns we expressed in Alexandrov I about the investigator and his investigation no longe r g ive us pause. We know that Nar ensky himself wa s the primary investigator, acc ompanied to both hospitals by the FSNI , who serve d as an inte rp re t er . We know the specific repr esenta tives with whom Nar ensky spoke at eac h hospital and the rea sons behind eac h individual’s conclusion that Petitioner’s medical

cer tificates wer e fra

udulent. At L om Hospital, for example, we know that Nar ensky sp o k e wi th hospital dire ctor Dr. Plamen Tzekov. Dr. Tzekov, who had serve d as Direc tor at L om sinc e 1991, provided three separ ate rea sons why the L om cer tificates wer e inauthentic. First, neither doctor listed on t h e ce rt i fi cate s had been employ ed by the L om Hospital. Second, while both listed phy sicians wer e orthopedic surg eons, the hospital had y et to hire its first orthopedic surg eon by the
y ear in which the cer

tificate was supposedly issued. Finally , the stamp used on Petitioner’s

cer tificates d i ff

er ed in wording from the stamp the hospital actua lly used on its documents.
Nar ensky testified that Dr. Tzekov showed him the rea l stamp used by L om Hospital and that he was able to obser

ve the diff

ere nce be tween the two firsthand.

10Nar ensky provided simil ar details reg arding his t ri p to Montana Hospital. There , too, we

know that Nar ensky spoke with the Hospital Direc tor. The d i re ct o r, Dr. Mag arita Nitzov, had supervised the hospital since 1996. L ike Dr. Tzekov, Dr . Nitzov t old Nar ensky that the phy sician listed on Petitioner’s medical cer tificate never worke d at her hospital. Also simil ar to Dr. Tzekov,
Dr. Nitzov informed Nar ensky that she identified Petitioner’s document as a forg ery beca use it had been marke d with a stamp for a hospital in Sofia, Bulg aria , and not the stamp used by the Montana Hospital. Finally , Dr. Nitzov told Nar ensky that the very name of the hospital was incorre ctly listed on the ce rtificate

. 2. Sub poena There is compar able support for the BI A’s deter mination that Petitioner’s alleg ed subpoena

was also fra

udulent. To investigate the document’s authenticity , Nar ensky trave led to the National
I nvestig ative Service office i n Montana from which it supposedly orig inated. Ag ain, we know
Nar ensky was acc ompanied by an interpre ter. Once he arr ived at the office , Nar ensky met with
De p u ty Chief Geor g e Nicolov. Nicolov informed Nar ensky that he believed the subpoena wa s a forg ery beca use, had it ac tually

been se rved on Petitioner as he c laimed, the bottom portion of the document would have been remove d for place m ent in Petitioner’s case file. Fur ther, Nar ensky ’s Report reve als that when Nicolov sear ched the elec tronic databa se for any rec ords rela ting to Petitioner, there w ere none wha tsoever. At bottom, Nar ensky ’s testimony and Report reve al an investigation that suffe rs from none of the flaws we i d en t i fied in Alexandrov I

. This investiga

tory improvement, coupled with the compelling fac t tha t none of the interviewe d authorities viewed Petitioner’s documents as g enuine

11or had any rec ord of Petitioner that could corr oborate his claims, convince s us that the BI A’s finding , which is itself aff

orded g reat defe renc e, is supported by substantial evidence

. D. P etitioner ’s know ledge of the f raud Petitioner’s final contention is that even if the documents in support of his application wer e fra udulent, DHS did not prove t h at h e knew of the fra ud. As Petitioner claims he persona lly retrie v ed t h e m edica l cer tificates from the hospitals in L om and Montana, respe ctively , and the subpoena from the secr etar y at a police station, howeve r, he is logic ally estopped from claiming lack of k n o wl ed ge t hat they wer e forg erie s. See A.R. at 76. (“A s [P etitioner] testified he himself obtained these documents, he cannot cast the blame for the procur ement of the fra udulent documents elsewhe re.” ). M o re o v er, Petitioner failed to offe r any convincing explanation as to why the documents failed to bear the m arking s of t heir authentic counter par t s o r wh y no individual at any investiga ted instit ution had a rec ord of him to corr oborate his testimony

. Acc ording ly , we find the
BI A’s conclusion that Petitioner k n ew t h at his documents wer e fra udulent to be supported by substantial evidenc e. See Sterkaj v. Gonzales , 439 F.3d 273, 277-78 (6th Cir. 2006) (“ Fr om fra udulent submissi ons, [t ]riers of fac t m ay p re s u me a purpose to defr aud in the absenc e of a persua sive explanation.”). III. CONCLUSION For the re asons stated he rein, we AF F IRM

.

12