                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            DEC 22 2016
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DHANDAYUTHAPANI THANGAVEL,                       No.   13-74446

                                                 Agency No. A099-910-276
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney
General,

              Respondent.


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

                            Submitted December 13, 2016**
                               San Francisco, California

Before:      KOZINSKI, BYBEE and N.R. SMITH, Circuit Judges.

      1. The agency’s adverse credibility finding was supported by substantial

evidence. See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010).



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                 page 2
Thangavel knowingly included in his original declaration an incident that didn’t

actually happen. See Singh v. Holder, 643 F.3d 1178, 1180 (9th Cir. 2011)

(“[I]ntentional deception toward the immigration authorities is culpable conduct

and one of several indications of dishonesty that casts doubt on the applicant’s

entire story.” (citation, internal quotation marks and square brackets omitted)).

Thangavel blames the misrepresentation on the unscrupulous actions of his

immigration consultant. But Thangavel testified he knew that the declaration

contained false information when he swore to its accuracy before the asylum

officer. Although he recanted the misrepresentation at the second merits hearing

before the Immigration Judge (IJ), it was too late. Thangavel’s deliberate

misrepresentation and other inconsistencies in his testimony, do not compel us to

reverse the agency’s adverse credibility finding.


      2. Because the adverse credibility determination independently supports the

denial of Thangavel’s petition for asylum, we do not reach the agency’s alternative

holding that Thangavel failed to establish an objectively well-founded fear of

persecution. See Shrestha, 590 F.3d at 1048 n.6.


      3. We lack jurisdiction to review Thangavel’s withholding of removal and

Convention Against Torture claims because he failed to challenge them to the
                                                                               page 3
Board of Immigration Appeals (BIA). See 8 U.S.C. § 1252(d)(1); Barron v.

Ashcroft, 358 F.3d 674, 677–78 (9th Cir. 2004).


      4. The agency did not err in finding that Thangavel filed a frivolous asylum

application because it complied with the procedural framework adopted in Ahir v.

Mukasey, 527 F.3d 912, 917 (9th Cir. 2008). Thangavel was sufficiently notified

of the consequences of filing a frivolous application by the written warning on his

asylum application. See Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012).

And the IJ’s specific finding that Thangavel had knowingly submitted a frivolous

application was supported by a preponderance of the evidence and properly

affirmed by the BIA. Ahir, 527 F.3d at 918.

      When questioned about the made-up incident in his declaration, Thangavel

explained that he included it because his immigration consultant had assured him it

was just being “cited as an example” and wouldn’t cause a problem. The brief that

Thangavel filed after the conclusion of testimony afforded him further opportunity

to address his misrepresentation. See Kulakchyan v. Holder, 730 F.3d 993, 996

(9th Cir. 2013). That the IJ considered and rejected Thangavel’s explanation

doesn’t mean he was deprived of an adequate opportunity to explain his reasons for
                                                                                 page 4
filing a partially false application. See id. For this reason, Thangavel’s due

process argument also fails.

      Nonetheless, Thangavel argues that the misrepresentation cannot be the

basis of a frivolousness finding because it wasn’t material and because he

submitted a new declaration before the merits hearing. Both arguments fail. The

fabricated story involved a person who was killed by the Rastrya Swanacvak

Sangam party despite fleeing to a different part of India and, therefore, directly

addressed whether Thangavel had demonstrated a well-founded fear of

persecution. See 8 C.F.R. § 1208.13(b)(2)–(3). Moreover, the submission of a

new declaration is irrelevant because even a withdrawn application may support a

frivolousness finding. Kulakchyan, 730 F.3d at 996. In any case, when he

submitted a new declaration, he didn’t retract his false declaration; he recanted the

misrepresentation in his original declaration only after the government reminded

him about perjury at the second merits hearing.


      5. The BIA didn’t abuse its discretion by denying Thangavel’s motion to

remand. See Ocampo v. Holder, 629 F.3d 923, 925 (9th Cir. 2010). The newly

notarized copies of the previously submitted evidence were neither material nor

new. See 8 C.F.R. § 1003.2(c)(1).
          page 5
DENIED.
