                                                                              FILED
                             NOT FOR PUBLICATION                              AUG 09 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


HARJINDERJIT SINGH GORAYA,                       No. 07-70686

               Petitioner,                       Agency No. A079-281-912

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                         Argued and Submitted July 15, 2010
                             San Francisco, California

Before:        W. FLETCHER and M. SMITH, Circuit Judges, and TODD, **
               Senior District Judge.

       Petitioner Harjinderjit Singh Goraya petitions for review of the Board of

Immigration Appeals’s (“BIA”) dismissal of his appeal of an Immigration Judge’s

(“IJ”) decision granting the Department of Homeland Security’s (“DHS”) motion


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
to reopen his proceedings, revoking his grant of asylum, and ordering him

removed. We have jurisdiction under 8 U.S.C. § 1252(a) and we deny the petition.

      A motion to reopen must proffer new evidence that “is material and was not

available and could not have been discovered or presented at the former hearing.”

8 C.F.R. § 1003.23(b)(3). Goraya argues that the IJ abused her discretion in

granting DHS’s motion to reopen, contending that DHS did not satisfy these

requirements. We review the Agency’s ruling on a motion to reopen for abuse of

discretion. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150-51 (9th Cir. 2010).

      The IJ did not abuse her discretion in concluding that DHS proffered

material evidence of fraud. DHS provided evidence that Boota Singh Basi and

Kashmir Singh Mahli had prepared Goraya’s asylum application, and that they had

pled guilty to running a criminal enterprise that prepared fraudulent asylum

applications. This evidence included a sworn statement by Basi that Goraya’s

application contained materially false information, including a false story that

Mahli and Basi had created. This was sufficiently material evidence of fraud to

warrant reopening. See Ordonez v. I.N.S., 345 F.3d 777, 785 (9th Cir. 2003)

(quoting In re S-V, 22 I. & N. Dec. 1306 (BIA 2000)) (“[W]e have reopened

proceedings ‘where the new facts alleged, when coupled with the facts already of




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record, satisfy us that it would be worthwhile to develop the issues further at a

plenary hearing on reopening.’”).

      Nor did the IJ abuse her discretion in concluding that the evidence was not

previously available and could not have been discovered or presented earlier.

Although Goraya had indicated to the IJ during his merits hearing that Basi had

made some misrepresentations in Goraya’s written application, the grant of asylum

to Goraya predated the government’s discovery of the extent of Basi and Mahli’s

fraud, the raiding of their office, and the securing of their guilty pleas and Basi’s

testimony. The IJ therefore did not abuse her discretion in granting the motion to

reopen.

      As for the merits, DHS had the burden to prove, by a preponderance of the

evidence, that “there is a showing of fraud in [Goraya’s] application such that he . .

. was not eligible for asylum at the time it was granted.” 8 C.F.R. § 1208.24(a)(1)

& (f). Goraya argues that the IJ erred in relying on Basi’s testimony because it was

unfounded and unreliable, the preparer work folder was incomplete, and Basi’s

cooperation agreement made his testimony involuntary. We must uphold the

Agency’s factual finding that the asylum application was fraudulent “unless any

reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B); see Sang Yoon Kim v. Holder, 603 F.3d 1100, 1102 (9th Cir.


                                           3
2010) (providing that the Agency’s factual findings are reviewed for substantial

evidence).

      Goraya’s objections to the reliability of the preparer work folder, Basi’s

status as a convicted felon, and the reliability of Basi’s testimony go to the weight

of the evidence and credibility of Basi’s testimony — issues properly within the

domain of the factfinder. Basi testified extensively about the process by which he

and his partner Mahli created fraudulent asylum applications, and specifically

explained that he had created a false story of persecution on which Goraya relied in

his written application and oral testimony. Goraya did not dispute that Basi and

Mahli prepared his application. The IJ and BIA properly re-assessed Goraya’s

earlier oral testimony in light of the new evidence provided by Basi, considered

Basi’s credibility and any incentive he may have had to testify falsely, and

determined that Goraya was not entitled to asylum at the time it was granted.

Because a reasonable factfinder would not have been compelled to conclude

otherwise, we conclude that the Agency’s finding of fraud was supported by

substantial evidence.

PETITION FOR REVIEW DENIED.




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