Opinion
No. 11-73944
03-05-2015
SHERNY ANGELICA SAROHA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
NOT FOR PUBLICATION
Agency No. A077 853 164 MEMORANDUM On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 10, 2015 San Francisco, California Before: THOMAS, Chief Judge, and TASHIMA and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Sherny Saroha ("Saroha") petitions for review of the order of the Board of Immigration Appeals ("BIA") upholding and adopting an immigration judge's ("IJ's") determination that she is removable under 8 U.S.C. § 1227(a)(1)(A) for having made willful misrepresentations of material facts under 8 U.S.C. § 1182(a)(6)(C)(i). We deny the petition for review.
1. Saroha contends that the IJ applied an improper objective-person standard under § 1182(a)(6)(C)(i) in assessing whether her misrepresentations were "willful." We review de novo the BIA's determinations of purely legal questions. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000). A willful misrepresentation under § 1182(a)(6)(C)(i) is "a voluntary and deliberate misstatement." Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir. 1977). For a misrepresentation to be willful, the party must have "knowledge of [its] falsity." Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995).
Saroha contends that the IJ committed legal error by employing an objective test for willfulness, rather than the subjective standard mandated by § 1182(a)(6)(C)(i) and Forbes. The IJ was incorrect to state that the test for determining whether a misrepresentation was willful "should be whether a reasonable person in respondent's position should have disclosed what happened." However, the IJ discussed at length Saroha's assertion that she did not know the contents of her application, but found that Saroha did have such knowledge. The IJ concluded that Saroha had made statements that were "deliberate, fraudulent, and a misrepresentation of the facts." In so doing, the IJ assessed whether Saroha's misrepresentation was "voluntary and deliberate."
Saroha additionally argues that the IJ and BIA held the government to an improperly low burden of proof. This argument lacks merit. The IJ applied the proper "clear and convincing evidence" standard. See 8 U.S.C. § 1229a(c)(3)(A).
2. Saroha also disputes the factual finding that she made willful misrepresentations on her asylum application. We review factual findings of the IJ and BIA for substantial evidence. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005). Saroha undisputedly failed to disclose her interrogation at the hands of Indonesian police and her employment at Bank Harpan Sentosa. Saroha filled out the application with the assistance of counsel, and has indicated she did not disclose the interrogation to her attorney because she was afraid it would affect her asylum prospects. Given these facts, we conclude that substantial evidence supports the IJ's determination that Saroha willfully misrepresented material facts. See 8 C.F.R. § 208.3(c)(2) ("The applicant's signature establishes a presumption that the applicant is aware of the contents of the application.").
Because we conclude Saroha willfully misrepresented material facts on her asylum application, rendering her removable, we do not address whether the IJ and BIA erred in concluding that she made willful misrepresentations on her adjustment of status application.
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The petition for review is DENIED.