Aghavni Cinapian v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGHAVNI CINAPIAN,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-190
Agency No.
A075-678-173
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 5, 2023**
Pasadena, California
Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.
Aghavni Cinapian is a native and citizen of Armenia. She petitions for review
of a decision by the Board of Immigration Appeals (“BIA”). The BIA dismissed her
appeal of an Immigration Judge’s (“IJ”) decision that she filed a frivolous asylum
* 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).
FILED
DEC 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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claim and was barred from obtaining any benefits under the Immigration and
Nationality Act (“INA”). We have jurisdiction to review under 8 U.S.C. § 1252.
We review the agency’s legal conclusions de novo and its factual findings for
substantial evidence. Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). We deny
the petition.
1. The BIA applied the proper legal framework in finding that Petitioner’s
asylum application was frivolous. To reach a frivolous finding, (1) an asylum
applicant must have “adequate notice of the consequences of filing a frivolous
application[;]” (2) the IJ or BIA must make a finding that the applicant knowingly
filed a frivolous application; (3) the finding “must be supported by a preponderance
of the evidence[;]” and (4) the applicant must be given ample opportunity to account
for fabrications in her application. Ahir v. Mukasey, 527 F.3d 912, 916–19 (9th Cir.
2008) (citing Matter of Y-L-, 24 I. & N. Dec. 151 (BIA 2007)).
Petitioner claims that the agency did not properly warn her of the
consequences of filing a frivolous application, but her brief to the BIA did not
contain this argument. Because Petitioner did not raise this issue to the BIA, she
failed to exhaust her administrative remedies. See Barron v. Ashcroft, 358 F.3d 674,
676–78 (9th Cir. 2004). Even if she had exhausted the issue, substantial evidence
supports that she was given proper notice. Petitioner’s asylum application included

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a warning, an IJ gave her an oral warning, and Petitioner testified that she understood
the “pros and cons” of filing a fabricated application.
Substantial evidence also supports the BIA’s finding that Petitioner
knowingly filed a frivolous application. Further, Petitioner waived any argument to
the contrary by failing to challenge the finding in her opening brief. See Rizk v.
Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011).
Petitioner asserts that she was not given sufficient opportunity to account for
discrepancies in her application. She claims that she was obliged to falsify her
application because of her husband’s demands. But the BIA noted that Petitioner’s
husband died in 2013, and Petitioner had more than five years after his death to
disclose the fabrications. When asked why she continued her false claim after her
husband’s death, she admitted she could have told the truth but that she was afraid.
The IJ permitted Petitioner to explain the discrepancies in her application. Thus,
sufficient evidence supports the BIA’s finding that she had sufficient opportunity to
account for the discrepancies in her application.
2. Petitioner asserts that the government violated her due process rights when
the IJ limited her from presenting testimony to explain why she presented a false
application. Due process requires “a full and fair hearing,” which “includes a
reasonable opportunity to present and rebut evidence.” Grigoryan v. Barr, 959 F.3d
1233, 1240 (9th Cir. 2020) (citing Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.

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2000)). But an IJ has discretion to conduct and control immigration proceedings,
including the authority to admit relevant and probative evidence. See 8 U.S.C. §
1229a(b)(1).
Here, the IJ allowed Petitioner to testify that she falsified her application due
to her husband’s demands, but sustained the government’s objections to a line of
questioning directed towards Petitioner’s son about whether she “always” listened
to her husband and about the cultural tradition of female submission. Even if
Petitioner’s testimony was improperly limited, she has not shown prejudice. See
Colmenar, 210 F.3d at 971 (stating that a petitioner must show prejudice to succeed
on a due process claim). The IJ understood her argument that she was obliged to
falsify the application but found it unpersuasive given the many years she had to
disclose the fabrication after her husband’s death.
The petition for review is DENIED.

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