                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 08 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SURESH M. VYAS, AKA Swami Rajesh                 No. 13-72044
Vara Nand AKA Sureshwaranand Guru
Jagat Prak Shastri, AKA Swamisuresh              Agency No. A077-433-885
Guru JP Shastri, AKA Sureshchandra
Vyas,
                                                 MEMORANDUM*
              Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                              Submitted July 5, 2016**
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: BERZON and N.R. SMITH, Circuit Judges, and ZOUHARY,*** District
Judge.

      Petitioner Suresh Vyas seeks review of a final order of the Board of

Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge

(“IJ”) denying his claims for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”), and determining that he had knowingly

filed a frivolous asylum application within the meaning of 8 U.S.C. § 1158(d)(6).

Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994),

and also provides its own review of the evidence and the law, we review both the

IJ’s and the BIA’s decision. See Ali v. Holder, 637 F.3d 1025, 1028-29 (9th Cir.

2011). We deny the petition.

      1. The IJ’s determination that Vyas was not credible, which the BIA

adopted and affirmed, is supported by substantial evidence. See Rizk v. Holder,

629 F.3d 1083, 1087 (9th Cir. 2011). The IJ pointed to numerous inconsistencies

in Vyas’s testimony and written submissions. In particular, the IJ relied on Vyas’s

failure to disclose his 1994 and 1997 trips to the United States, as well as evidence

contradicting Vyas’s assertion that he had never returned to India since entering the

United States in 1998. The government and the IJ gave Vyas “a reasonable

opportunity to explain [these] perceived discrepancies,” Lei Li v. Holder, 629 F.3d

        ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
1154, 1159 (9th Cir. 2011), but Vyas did not provide a cogent answer. These

inconsistencies regarding Vyas’s repeated travel to and from India go to the heart

of his claim that he feared returning to India because of persecution he expected to

suffer there.1

       2. The IJ denied relief on Vyas’s claims for asylum, withholding of

removal, and protection under the CAT based on his adverse credibility

determination. We therefore deny the petition as to those claims.

       3. “We review a determination that an applicant knowingly made a

frivolous application for asylum for compliance with a procedural framework

outlined by the BIA.” Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010). In

In re Y-L, 24 I. & N. Dec. 151 (BIA 2007), the BIA established four procedural

requirements necessary for a finding of frivolousness. “First, an asylum applicant

must have notice of the consequences of filing a frivolous application. Second, the

IJ or Board must make specific findings that the applicant knowingly filed a

frivolous application. Third, those findings must be supported by a preponderance

of the evidence. Finally, the applicant must be given sufficient opportunity to

       1
        “[U]nder the REAL ID Act credibility findings no longer need to go ‘to the
heart of the applicant’s claim.’” Malkandi v. Holder, 576 F.3d 906, 918 (9th Cir.
2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). “However, the relevant provisions
of that Act are not applicable to this case because [Vyas] applied for relief before
May 11, 2005.” Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005).

                                          3
account for any discrepancies or implausibilities in his application.” Ahir v.

Mukasey, 527 F.3d 912, 917 (9th Cir. 2008).

      Each of these requirements was met. First, Vyas’s 1999 and 2005 asylum

applications each contained written warnings explaining that the filing of a

frivolous application would result in permanent ineligibility for immigration

benefits. This written warning constitutes adequate notice. Cheema v. Holder, 693

F.3d 1045, 1049 (9th Cir. 2012). Second, the IJ specifically “conclude[d] that

[Vyas]’s application was deliberately fabricated in almost every respect,” and that

accordingly each of the “criteria for imposing the bar of Section 208(d)(6) of the

Act” were satisfied. Third, the IJ’s finding that Vyas deliberately fabricated

material elements of his application is supported by a preponderance of the

evidence. Vyas could not account for substantial evidence directly contradicting

his assertion that he had never returned to India since arriving in 1998. Together

with the numerous other inconsistencies in Vyas testimony and filings, that

evidence provides ample support for the IJ’s finding. Finally, Vyas was given

sufficient opportunity to account for the discrepancies cited by the IJ. He was

questioned at length about his failure to disclose his 1994 and 1997 trips to the

United States, as well as about the 2003 visa applications, and he was unable give

any satisfactory explanation.


                                          4
      We accordingly deny the petition as to Vyas’s claim that the IJ erred in

holding that Vyas had knowingly filed a frivolous asylum application.

      DENIED.




                                         5
