                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 8 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

ULADZIMIR SLIUSAR,                              No.    16-74019

                Petitioner,                     Agency No. A098-534-453

 v.
                                                MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                    Argued and Submitted December 19, 2018
                            San Francisco, California

Before: BOGGS,** PAEZ, and OWENS, Circuit Judges.

      Petitioner Uladzimir Sliusar came to the United States from Belarus and

requested asylum, withholding of removal, and Convention Against Torture

(“CAT”) protection. He claimed that as a member of a pro-democracy student

group, he was arrested and beaten for his activism. But, as the government


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
demonstrated at a subsequent hearing, Sliusar plagiarized four paragraphs of his

application from other Belarusians’ successful submissions.1 An immigration judge

found that Sliusar’s asylum application was frivolous, denied his requests for

relief, and ordered him removed. She apparently did so without considering

documentary evidence—including two letters from fellow activists and hospital

records—that corroborated much of his story.2

      After years of unsuccessful motions and appeals, Sliusar hired new attorneys

and filed a motion to reopen his case with the Board of Immigration Appeals

(“BIA”). He alleged that his previous attorneys were ineffective because they had

failed to raise our decision in Al-Harbi v. INS, 242 F.3d 882 (9th Cir. 2001).

According to Sliusar, Al-Harbi required the immigration judge to consider his

documentary evidence before ruling on his requests for withholding of removal

and CAT protection. The BIA denied his motion to reopen, and he petitioned this

court for review. We grant Sliusar’s petition, vacate the BIA’s decision, and

remand to the BIA to exercise its discretionary authority under the correct legal

framework.



1
  Years later, Sliusar also admitted to lying about who helped him prepare his
application and to fabricating a beating by a KGB agent that he claimed to have
suffered in the rector’s office at his university.
2
  The immigration judge listed these documents, which were admitted as exhibits
at the hearing, in a “Summary of the Evidence” in her written decision, but she did
not refer to them in her “Analysis and Findings.”

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      When the BIA denies sua sponte a motion to reopen, we have jurisdiction

“for the limited purpose of reviewing the reasoning behind the decision[ ] for legal

or constitutional error.” Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016). We

“review purely legal questions de novo.” Id. at 581.

      The BIA based its decision on two legal errors. First, it held that Al-Harbi

does not apply to Sliusar’s case, so his prior attorneys were not ineffective for

failing to raise it. We disagree. In Al-Harbi, we held that an immigration judge

must decide whether “substantial, non-testimonial, evidence in the record”

supports a claim for asylum or withholding of removal—even if she deems the

applicant’s testimony not to be credible. 242 F.3d at 894. The same requirement

applies to claims for relief under CAT. See Kamalthas v. INS, 251 F.3d 1279, 1284

(9th Cir. 2001) (vacating denial of motion to reopen “where the BIA has plainly

overrelied on its prior adverse credibility finding against [the petitioner] and failed

to consider evidence of the relevant country conditions in the record.”).

      The BIA found Al-Harbi inapplicable to this case for two reasons, neither of

which persuades us.3 First, it held that Al-Harbi does not extend to cases where an



3
  The government suggests a third distinction: that Al-Harbi applies only to claims
of persecution based solely on membership in a particular targeted group, where
the applicant’s actual or imputed membership in that group is uncontested. We
cannot consider this argument because the BIA did not make it. Andia v. Ashcroft,
359 F.3d 1181, 1184 (9th Cir. 2004) (“In reviewing the decision of the BIA, we
consider only the grounds relied upon by that agency. If we conclude that the

                                           3                                    16-74019
immigration judge finds an asylum application to be frivolous.4 No authority

supports this conclusion,5 and it is inconsistent with the statutory and regulatory

scheme for frivolous asylum applications. While a person who files a frivolous

asylum application cannot receive any form of legal status under the Immigration

and Nationality Act (“INA”), he remains eligible for withholding of removal, see

8 C.F.R. § 1208.20, and protection under CAT (which is not part of the INA). Edu

v. Holder, 624 F.3d 1137, 1144 (9th Cir. 2010). Thus, there must be some way that

the filer of a frivolous asylum application can seek relief through withholding of

removal or under CAT. The scheme only makes sense if the immigration judge

must consider the entire record, not just the applicant’s fabricated testimony, and

determine whether independent evidence still warrants non-INA relief.

      The BIA also found Al-Harbi inapplicable because Sliusar relied on

documents different in kind than those in Al-Harbi. But Al-Harbi did not turn on

the type of documentary evidence presented. While the petitioner there happened

to rely on newspaper articles and State Department reports, 242 F.3d at 891, the


BIA’s decision cannot be sustained upon its reasoning, we must remand to allow
the agency to decide any issues remaining in the case.”).
4
  A frivolous asylum application has a “material element[ ]” that “is deliberately
fabricated.” 8 C.F.R. § 1208.20. Filing such an application makes an alien
“permanently ineligible for any benefits under” the INA. 8 U.S.C. § 1158(d)(6).
5
  The BIA cited only Matter of Y-L-, 24 I. & N. Dec. 151 (BIA 2007). This
decision set out four “procedural safeguards” an immigration judge must follow
before finding an asylum application to be frivolous. Id. at 155. It does not mention
Al-Harbi.

                                          4                                    16-74019
core question was whether “substantial, non-testimonial, evidence in the record”

supported his claim. Id. at 894. We explained that “documentary evidence

pertaining to the asylum applicant himself and to the events in which he was

involved” can support a claim for relief, and we added that both “[b]ackground

materials” about country conditions and “specific documentary material” about the

applicant are relevant. Id. at 891. Sliusar submitted both kinds of evidence.

      Thus, Al-Harbi applies to this case. An immigration judge must consider all

of the documentary evidence in the record, regardless of its type, before ruling on

requests for withholding of removal and CAT protection—even if she finds a

related asylum application to be frivolous.

      The BIA’s second legal error is its holding that Sliusar did not file his

motion to reopen with due diligence. Sliusar attached an affidavit to his motion.6 In

it, he stated that he first learned about Al-Harbi on April 26, 2016, after he hired

his current lawyers and they reviewed his case. On July 25, 2016—90 days after he

learned about Al-Harbi—he filed his motion to reopen. “Typically, an alien is

diligent if he continues to pursue relief and relies on the advice of counsel as to the

means of obtaining that relief.” Avagyan v. Holder, 646 F.3d 672, 679, 683 (9th



6
  “The BIA was under an affirmative obligation to accept as true the facts stated in
[the petitioner’s] affidavit in ruling upon his motion to reopen unless it [found]
those facts to be inherently unbelievable.” Ghahremani v. Gonzales, 498 F.3d 993,
999 (9th Cir. 2007) (internal quotation marks omitted).

                                           5                                      16-74019
Cir. 2011) (holding that petitioner was diligent for filing a motion to reopen within

90 days of reviewing her immigration file with competent counsel). The BIA gave

no reason to deviate from this default rule, to doubt Sliusar’s affidavit, or to think

he should have discovered Al-Harbi earlier. Thus, on the current administrative

record, he acted with due diligence in raising his Al-Harbi-based ineffective-

assistance claim.7

      For these reasons, we GRANT Sliusar’s petition for review, VACATE the

BIA’s denial of his motion to reopen, and REMAND to the BIA “to exercise its

discretion against the correct legal framework.” Bonilla, 840 F.3d at 592.




7
  Sliusar also claims that his prior attorneys were ineffective for failing to introduce
more documentary evidence and call more witnesses. The BIA seemed to treat this
as an independent ineffective-assistance argument that was not raised with due
diligence, while Sliusar’s briefs frame it as a corollary to his Al-Harbi claim. We
need not resolve this issue, but the BIA should consider it on remand in light of a
legally correct interpretation of Al-Harbi. We also decline to reach Sliusar’s
argument that the BIA articulated the wrong standard of eligibility for withholding
of removal and CAT relief, because the BIA did not address the merits of his
claims.

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