Immigration / Asylum and Withholding from Removal / False Identity Asylum Petitions

Dhital v. Mukasey
No. 06-75043 (07/17/08)
Before Circuit Judges O’Scannlain, Hawkins, and District Judge Selna for the Central District of California http://www.ca9.uscourts.gov/ca9/newopinions.nsf/68063EB0FBD0A8098825748900508DA4/$file/0675043.pdf?openelement


Dhital legally entered the United States to enroll in college using a student visa. Five years later, Dhital failed to enroll full time as a student. Consequentially, immigration officials served Dhital with a notice to appear because his student visa was void.
Dhital conceded removability before an Immigration Judge (IJ), but plead for asylum, withholding from removal, and protection under the Convention Against Torture (CAT). Additionally, Dhital produced a grant of asylum under a false identity he had obtained earlier from U.S. Immigration. The IJ denied all Dhital’s claims, and the Board of Immigration Appeals affirmed. The Ninth Circuit also affirmed. First, the Immigration and Nationality Act prohibits asylum after a frivolous application for asylum using a false identity. Second, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires immigrants to petition for asylum after one year of entry into the U.S. unless changed circumstances materially affected the applicant’s eligibility or extraordinary circumstances related to the delay in filing. Third, the Ninth Circuit found that an applicant must establish as more likely than not that persecution based on removal would occur for the court to grant
withholding of removal. Finally, CAT applicants must show that it is
more likely than not that they would suffer torture, not just persecution, by a particularized threat of torture with the consent of a public authority. Therefore, the IJ properly denied all of Dhital’s claims.
DENIED. Concurrence by Judge O’Scannlain.