FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABRAHAM F. KALILU,  No. 06-75425

Petitioner, Agency No.

v. A98-132-223 

MICHAEL B. MUKASEY, Attorney ORDER AND

General, AMENDED

Respondent. OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 3, 2007—San Francisco, California

Filed February 14, 2008

Amended November 20, 2008

Before: Dorothy W. Nelson, Stephen Reinhardt, and

Carlos T. Bea, Circuit Judges.

Per Curiam Opinion

15683
COUNSEL

Socheat Chea, Esq., Duluth, Georgia, for the petitioner. 

Peter D. Keisler, Esq., Linda S. Wendtland, Esq., Holly

Smith, Esq., Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent.

ORDER

The majority opinion filed February 14, 2008, slip op.

1369, and appearing at 516 F.3d 777 (9th Cir. 2008), is

hereby amended as follows:

1. slip op. at 1374, line 3: Replace “and” with “or.”

2. slip op. at 1374, lines 3-5: Replace “If an alien is

removed, he is no longer eligible for adjustment of status.

See 8 U.S.C. § 1182(a)(9)(A)(ii).” with “If an alien is

removed, his adjustment application is deemed abandoned. 8 C.F.R. § 245.2(a)(4)(ii)(A). The alien cannot

reapply for adjustment of status until he has reentered the

United States, which he is barred from doing for ten

years. 8 C.F.R. § 245.1(a); 8 U.S.C. § 1182(a)(9)(A)(ii).”

3. slip op. at 1375: Replace Footnote 5 with the following

text: “On remand, the agency may consider Petitioner’s

request in light of the Interim Rule as a request for a continuance or a stay of proceedings pending USCIS’s adjudication of Petitioner’s pending marriage petition. See,

e.g., Ramirez-Sanchez v. Mukasey, 508 F.3d 1254, 1256

(9th Cir. 2008).” 

With these amendments, the panel has voted to DENY the

petition for panel rehearing. No future petitions for rehearing

shall be entertained.

KALILU v. MUKASEY 15685
OPINION

PER CURIAM: 

Abraham Kalilu (“Kalilu”), a twenty-seven-year-old native

and citizen of Liberia, seeks review of the Board of Immigration Appeals’ (“BIA”) adverse decision determining that he

filed a frivolous asylum application, denying his claims for

asylum and withholding of removal, denying his request for

voluntary departure, and denying his motion to reopen. Petitioner raises two principal challenges to the BIA’s decision.1

First, he argues that the BIA’s frivolousness determination

cannot be sustained because he was not afforded the required

procedural safeguards, including notice and an opportunity to

respond. Second, he argues that the BIA abused its discretion

in denying his motion to reopen so that he could have an

opportunity to pursue adjustment of status on the basis of his

marriage to a United States citizen. We have jurisdiction over

both of these claims pursuant to 8 U.S.C. § 1252, and we

grant the petition for review. 

A.

[1] A determination that an applicant filed a frivolous asylum application renders the applicant permanently ineligible

for immigration relief. 8 U.S.C. § 1158(d)(6). Petitioner con1Petitioner raises three additional challenges. We lack jurisdiction over

his claim that the BIA erred in denying his request for voluntary departure.

See 8 U.S.C. § 1229c(f); Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th

Cir. 2003). We also lack jurisdiction over a claim concerning the merits

of Petitioner’s asylum application because he did not challenge its denial

before the BIA. See 8 U.S.C. § 1252(d)(1); Vargas v. INS, 831 F.2d 906,

907-08 (9th Cir. 1987). Finally, substantial evidence supports the BIA’s

adverse credibility determination. See Chen v. Ashcroft, 362 F.3d 611, 617

(9th Cir. 2004). In the absence of credible testimony, Petitioner failed to

meet the high burden of proof required to establish eligibility for withholding of removal. See Duarte de Guinac v. INS, 179 F.3d 1156, 1159

(9th Cir. 1999). 

15686 KALILU v. MUKASEY
tends that the BIA erred in affirming the IJ’s frivolous asylum

application determination in his case. On April 25, 2007, the

BIA provided guidance for when an asylum application may

be found frivolous in accordance with the statute and governing regulation. See In re Y-L-, 24 I. & N. Dec. 151, 155 (BIA

2007). Since these guidelines were issued five months after

the BIA considered Petitioner’s appeal, we grant the petition

in part and remand so that the BIA may apply the standards

set forth in In re Y-L- to Petitioner’s case in the first instance.2

B.

Petitioner also argues that the BIA abused its discretion in

denying his motion to reopen. See Lara-Torres v. Ashcroft,

383 F.3d 968, 972 (9th Cir. 2004) (reviewing denial of motion

to reopen for abuse of discretion). The BIA held that Petitioner’s motion to reopen “must be denied” because a newlyenacted regulation clarified that, as an arriving alien, Petitioner “must pursue any application for adjustment of status

with the United States Citizenship and Immigration Services

(USCIS) independent of [ ] removal proceedings.” See Eligibility of Arriving Aliens in Removal Proceedings to Apply for

2At oral argument, Petitioner’s counsel, relying on a recent Third Circuit decision, argued that the BIA erred as a matter of law in finding that

Petitioner filed a frivolous asylum application where his application was

denied as untimely. See, e.g., Luciana v. Attorney Gen., 502 F.3d 273, 280

(3d Cir. 2007). Luciana is distinguishable from the present case. In that

case, the BIA’s frivolousness determination was based on the petitioner’s

submission of an asylum application that contained a false story of her

alleged persecution in Indonesia. Luciana, 502 F.3d at 280 n.6. The Third

Circuit held that because the petitioner was statutorily time-barred from

filing her asylum application, the false story “was totally incapable of

influencing the decision-makers, and therefore it was not material.” Id. at

280. By contrast, in the present case, Petitioner’s falsehood (an inaccurate

date of entry) went to the very question of whether his application was

time-barred in the first instance. Unlike in Luciana, not only was this misrepresentation “[ ]capable of influencing the decision-makers[,]” it indeed

did influence the decision-makers, who initially adjudicated his asylum

application on the merits rather than denying it as untimely. 

KALILU v. MUKASEY 15687
Adjustment of Status and Jurisdiction to Adjudicate Applications for Adjustment of Status, 71 Fed. Reg. 27585-592 (May

12, 2006) (codified at 8 C.F.R. §§ 1.1, 245.1, 245.2, 1001.1,

1245.1, 1245.2) (hereinafter “Interim Rule”). We agree that

the BIA’s denial of Petitioner’s motion to reopen solely on

jurisdictional grounds constitutes an abuse of discretion.3

[2] The Interim Rule upon which the BIA relied in denying

Petitioner’s motion to reopen was passed in response to the

decisions of four Courts of Appeal, including our own, holding that the Attorney General must provide an opportunity for

arriving aliens in removal proceedings to apply for adjustment

on the basis of a valid immigrant visa petition. See Succar v.

Ashcroft, 394 F.3d 8, 9 (1st Cir. 2005); Zheng v. Gonzales,

422 F.3d 98, 119 (3d Cir. 2005); Bona v. Gonzales, 425 F.3d

663, 670-71 (9th Cir. 2005); Scheerer v. U.S. Attorney Gen.,

445 F.3d 1311, 1318 (11th Cir. 2006). The opportunity that

the Interim Rule affords for an arriving alien in removal proceedings to establish his eligibility for adjustment based on a

bona fide marriage is rendered worthless where the BIA, as

it purports to do in the present case, denies a motion to reopen

(or continue) that is sought in order to provide time for

USCIS to adjudicate a pending application. Without a reopening or a continuance, an alien is subject to a final order of

removal, despite the fact that he may have a prima facie valid

I-130 or adjustment application pending before USCIS. If an

alien is removed, his adjustment application is deemed abandoned. 8 C.F.R. § 245.2(a)(4)(ii)(A). The alien cannot reapply

for adjustment of status until he has reentered the United

States, which he is barred from doing for ten years. 8 C.F.R.

§ 245.1(a); 8 U.S.C. § 1182(a)(9)(A)(ii). 

3We note that if, on remand, the BIA determines that Petitioner filed a

frivolous asylum application, this determination would preclude Petitioner

from eligibility to adjust his status. See 8 U.S.C. § 1158(d)(6) (rendering

an alien who files a frivolous asylum application permanently ineligible

for any future immigration benefits). 

15688 KALILU v. MUKASEY
The BIA’s denial of Petitioner’s motion to reopen on jurisdictional grounds is also contrary to the Board’s general policy of favorably exercising its discretion to grant motions to

reopen on the basis of an unadjudicated I-130 petition. See In

re Velarde-Pacheco, 23 I. & N. Dec. 253, 256-57 (BIA 2002)

(en banc); Matter of Garcia, 16 I. & N. Dec. 653, 657 (BIA

1978), modified on other grounds by Matter of Arthur, 20 I.

& N. Dec. 475 (BIA 1992) (providing that “discretion should,

as a general rule, be favorably exercised where a prima facie

approvable visa petition and adjustment application have been

submitted in the course of a deportation hearing or upon a

motion to reopen.”). 

[3] We therefore hold that the BIA abused its discretion in

denying Petitioner’s motion to reopen and remand for an

exercise of the agency’s discretion that takes into consideration the factors set forth in Velarde-Pacheco. 23 I. & N. Dec.

at 256.4

4Velarde-Pacheco provides that a “properly filed motion to reopen may

be granted, in the exercise of discretion, to provide an alien an opportunity

to pursue an application for adjustment where the following factors are

present: (1) the motion is timely filed; (2) the motion is not numerically

barred by the regulations; (3) the motion is not barred by Matter of Shaar,

21 I. & N. Dec. 541 (BIA 1996), or on any other procedural grounds; (4)

the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide; and (5) the Service

either does not oppose the motion or bases its opposition solely on Matter

of Arthur.” 23 I. & N. Dec. at 256. 

We note that even if these factors are present, the decision of whether

or not to grant the motion to reopen remains within the BIA’s discretion.

See id. at 256 (explaining that “[e]very application necessarily requires

examination of the relevant factors and a determination of the weight such

factors should be accorded in the exercise of discretion . . . .”). See also

71 Fed. Reg. at 27589 (comments published with “Interim Rule”) (“While

noting that it will ordinarily be appropriate for an immigration judge to

exercise his or her discretion favorably to grant a continuance or motion

to reopen in the case of an alien who has submitted a prima facie approvable visa petition and adjustment application in the course of a deportation

hearing . . . an immigration judge has discretion in an appropriate case to

deny a continuance . . . .”). 

KALILU v. MUKASEY 15689
C.

For the reasons set forth above, we DISMISS the petition

insofar as it seeks review of Petitioner’s claim to asylum and

request for voluntary departure over which we lack jurisdiction, DENY the petition with respect to the agency’s denial of

withholding of removal, and GRANT the petition and

REMAND for the BIA to reconsider its frivolousness determination in light of In re Y-L- and for a renewed exercise of

the agency’s discretion with respect to Petitioner’s motion to

reopen.5

DISMISSED in part, DENIED in part, GRANTED and

REMANDED in part.

5On remand, the agency may consider Petitioner’s request in light of the

Interim Rule as a request for a continuance or a stay of proceedings pending USCIS’s adjudication of Petitioner’s pending marriage petition. See,

e.g., Ramirez-Sanchez v. Mukasey, 508 F.3d 1254, 1256 (9th Cir. 2008).

15690 KALILU v. MUKASEY