Adnan Muhanna v. ALBERTO R. GONZALES, Attorney General of The United States

1 The Honorable Milton I. Shadur, Senior United States District Judge for the Northern
District of Illinois, sitting by designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4754
ADNAN MUHANNA,
Petitioner
v.
*ALBERTO R. GONZALES, Attorney General of The United States; BUREAU OF
CITIZENSHIP AND IMMIGRATION SERVICES,
Respondents
*Substituted pursuant to Rule 43c, F.R.A.P.
On Appeal from the United States Department of Justice
Board of Immigration Appeals
(BIA No. A46-010-274)
Submitted pursuant to Third Circuit LAR 34.1(a)
on December 7, 2004
Before: AMBRO and VAN ANTWERPEN, Circuit Judges,
and SHADUR, Senior District Judge.1
(Filed March 3, 2005)
Melvin R. Solomon, Esq.
Parsekian and Solomon, P.C.
140 Main Street
Hackensack NJ 07601

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2 All further references to provisions of Title 8 will simply read “Section --.”
2
Counsel for Petitioner
Peter D. Kiesler, Esq.
Assistant Attorney General, Civil Division
David V. Bernal, Esq.
Assistant Director
Russell J.E. Verby, Esq. (Argued)
Office of Immigration Litigation
United States Department of Justice
P.O. Box 878, Benjamin Franklin Station
Washington D.C. 20044
Counsel for Respondent
____
OPINION OF THE COURT
SHADUR, District Judge
Adnan Muhanna (“Muhanna”) appeals the affirmance by the Board of Immigration
Appeals (“BIA”) of the decision by Immigration Judge (“IJ”) Annie Garcy (1) finding that
Muhanna knowingly filed a frivolous asylum application and is thereby rendered permanently
ineligible by 8 U.S.C. § 1158(d)(6)2 to receive any benefits under United States immigration laws
and (2) denying Muhanna’s applications for withholding of removal and for protection under the
United Nations Convention Against Torture, and Other Cruel, Inhuman or Degrading Treatment
or Punishment (“Convention”). Because we conclude that the IJ’s failure to adhere to the
administrative regulations regarding frivolous findings resulted in a denial of due process, we
grant Muhanna’s petition for review of the BIA’s order and remand Muhanna’s case to the BIA.
Background

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3 While the IJ’s decision and the Government’s brief state that Muhanna is a native of
Jordan (“born in Jordan”), Muhanna’s own brief states that he was “born on February 20, 1969 in
Mukmas, Palestine.” No city or village spelled in that fashion appears in the Times Atlas of the
World (10th ed. 1999), but it does show Mukhm~s as a village approximately eight miles
northeast of Jerusalem and 5 miles east of Ramallah in the West Bank of Israel, commonly
known as the Occupied Palestinian Territories. It is unclear why the Government and the IJ
consider him a native of Jordan, but in any event Muhanna views himself as a stateless
Palestinian. That difference does not impact the present appeal, but it would bear looking into if
Muhanna were ultimately to be ordered removed from the United States.
3
Following his marriage to an American citizen in Ramallah in 1995, Muhanna entered
the United States on October 17, 1996 as a conditional permanent resident.3 After living in the
United States for a time with his wife, Muhanna obtained a divorce from Islamic authorities in
Ramallah on September 23, 1998. Because he had failed to file a joint application for the
removal of the conditions on his permanent residency as required by Section 1186a(c)(1)(A)
during his marriage, on December 7, 1999 Muhanna applied to the Immigration and
Naturalization Service (“INS”) for a waiver under Section 1186a(c)(4)(B). Under that provision
an alien’s failure to file a joint petition for the removal of the conditions on permanent residency
may be excused if the alien shows that the marriage qualifying him for conditional status was
entered into in good faith but has been terminated and if the alien was not at fault in failing to file
the petition. Muhanna’s application for the good faith marriage waiver was denied by the INS on
September 1, 2000.
On November 27, 2000 the INS commenced removal proceedings against Muhanna,
asserting the termination of his conditional status. In the course of those proceedings Muhanna
admitted the factual allegations put forth by the INS and conceded that he was removable, but he
asked the IJ to review the denial of his good faith marriage waiver and presented evidence that in
addition to the divorce from Islamic authorities in Ramallah he had obtained a divorce from a

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4
New Jersey court. On June 15, 2001, following several master calendar hearings and
continuances, Muhanna also filed applications for asylum, withholding of removal and protection
under the Convention, all based on the ongoing conflict between Israeli and Palestinian forces in
the Middle East. In particular he related several incidents of persecution he and his family had
endured. Muhanna was warned of the consequences of filing a frivolous asylum application.
At an August 14, 2001 master calendar hearing the IJ set the case for a merits hearing and
stated she would bifurcate the proceedings:
So maybe we’ll have to do the [waiver application] first and then if I don’t grant
the waiver we can move on to the asylum application....And then we would do
that, I suppose, on some other day.
When the merits hearing began on June 10, 2002, however, the IJ said she was going to address
both the waiver application and the asylum application. Although Muhanna’s counsel responded
that he was prepared to address only the waiver application and that he did not take on
Palestinian asylum cases as a matter of principle, the IJ replied:
Well I don’t know what your principle is, but we may end up doing this case.
We’ll see how it goes today.
In response to questions posed by his counsel, Muhanna testified regarding his marriage,
his arrival in the United States and his divorce. Following some testimony that was somewhat
inconsistent on those matters, the IJ sought to determine whether the fear of living in Ramallah
that Muhanna asserted as the basis for his asylum application predated his marriage. She asked
whether a stabbing to which Muhanna had referred in the asylum application (he there claimed
that his Jewish employer in Ramallah had stabbed him on May 6, 1996) occurred before or after
his marriage. Muhanna initially responded, “Nobody stabbed me,” but he then said he had been

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5
stabbed by a man named Mohammed when he tried to break up a fight. Warning Muhanna that
his answer was inconsistent with his asylum application and also warning him of the
consequences of filing a frivolous asylum application, the IJ allowed Muhanna to confer with
counsel. After he then did so, Muhanna showed the IJ a major scar on his arm wholly consistent
with his having been stabbed, testified--consistently with his asylum application--that the
stabbing had in fact been inflicted by his Jewish employer, and he explained that he had lied
earlier during the hearing because he was afraid that if his employer discovered his testimony he
would be harmed if he were sent back to Ramallah.
Conceding that she had “stumbled onto [the] line of inquiry” regarding the asylum
application while initially addressing only the waiver application, the IJ halted the proceedings
and made a finding under Section 1158(d)(6) that Muhanna’s asylum application was frivolous,
making him ineligible to receive any immigration benefits. That finding was expressly based
entirely on the inconsistency between his hearing testimony and the original asylum application
as to the stabbing incident. On that ground the IJ found Muhanna’s asylum application was “a
crystal-clear case of a fabricated [application] that is frivolous in every respect.” She further
concluded that because the information regarding the stabbing was “the most important, decisive
information that there could be about [Muhanna’s] experiences in his country... [, its]
materiality...[was] undeniable.”
Based on that finding of frivolousness, the IJ held Muhanna ineligible for the good faith
marriage waiver, for asylum and for voluntary departure. She further denied his applications for
withholding of removal and protection under the Convention on the ground that he was not
credible and ordered that he be removed to Jordan. After the BIA then affirmed the IJ’s decision

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without opinion, Muhanna timely filed this appeal.
We have jurisdiction to review final orders of removal pursuant to Section 1252(a)(1)
(Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003)). And where as here the BIA affirms the
IJ’s decision without opinion, “we review the IJ’s opinion and scrutinize its reasoning” (Dia v.
Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc)).
Muhanna’s Due Process Claim
It has been established for more than a century that aliens are entitled under the Fifth
Amendment to due process of law in removal proceedings (Reno v. Flores, 507 U.S. 292, 306
(1993)). Due process requires three things in the context of those proceedings (Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)(internal quotation marks and citations omitted)):
An alien: (1) is entitled to factfinding based on a record produced before the
decisionmaker and disclosed to him or her; (2) must be allowed to make
arguments on his or her own behalf; and (3) has the right to an individualized
determination of his or her interests.
Muhanna’s due process claim centers on the first and second of those rights, and he argues that
they were violated in two ways.
First, Muhanna makes much of the fact that the IJ addressed his asylum application in the
course of a hearing that he believed was being held only to address his good faith marriage
waiver application. He claims that the “sua sponte change in plans” left him and his counsel
unprepared to proceed with the asylum claim. But that argument cannot prevail. IJs are entitled
to “broad (though not uncabined) discretion over the conduct of trial proceedings” so long as
those proceedings do not amount to a denial of the fundamental fairness to which aliens are
entitled (see Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999); Iliev v. INS, 127 F.3d 638,

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4 Muhanna also argues that but for the “procedural error” he could have prevailed on his
waiver application and avoided addressing the asylum application, an argument that suggests he
was prejudiced by having to address the asylum application at all. Surely that cannot be the basis
for a Fifth Amendment violation--no alien has a due process right to avoid testifying about an
asylum application that he has filed, merely because there may be other grounds on which he can
avoid removal.
7
643 (7th Cir. 1997)). Though counsel indicated he would not pursue Muhanna’s asylum claim
for personal reasons, the IJ’s frivolousness finding brought an abrupt halt to the proceedings so
that the issue never arose. Moreover, the initial counsel’s reluctance would not necessarily have
blocked consideration of the asylum claim, because it appears that one of his partners would have
been available to do so, perhaps later that same day. And even accepting that Muhanna and his
counsel were unprepared to address the asylum claim, we cannot say that it was fundamentally
unfair for the IJ to question Muhanna about an incident described in an asylum application that
Muhanna himself had filed almost one year earlier. Because that incident could be viewed as
relevant to his good faith marriage waiver application insofar as it may have given Muhanna an
ulterior motive for marrying an American citizen, thus calling into question whether that
marriage was entered in good faith, the IJ’s inquiry was not itself a denial of due process.4
Muhanna’s second argument is that the IJ’s frivolousness finding under Section
1158(d)(6) was infirm due to her failure to make the factual findings mandated by that statute’s
implementing regulation. At the outset it is important to recognize the severe consequences that
attach to a frivolousness finding. Section 1158(d)(6) provides that “[i]f the Attorney General
determines that an alien has knowingly made a frivolous application for asylum” after receiving
notice of the consequences of doing so, “the alien shall be permanently ineligible for any
benefits” under the immigration laws. One of the “most extreme provisions” in the Illegal

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Immigration Reform and Immigrant Responsibility Act of 1996, the bar once imposed “may not
be waived under any circumstances” (Austin T. Fragomen, Jr., et al, Immigration Legislation
Handbook § 8:96 (database updated April 2004)). Muhanna urges that because the IJ imposed
that “death sentence” on his immigration prospects without giving him ample opportunity to
present his case, she thereby denied him due process of law in violation of the Fifth Amendment.
We agree.
Section 1158(d)(6)’s implementing regulation, 8 C.F.R. § 208.20, provides:
For purposes of this section, an asylum application is frivolous if any of its
material elements is deliberately fabricated. Such finding shall only be made if
the immigration judge or the Board is satisfied that the applicant, during the
course of the proceedings, has had sufficient opportunity to account for any
discrepancies or implausible aspects of the claim.
Here the IJ concluded that the stabbing incident’s materiality was “undeniable” because it was
“the most important, decisive information there could be about the respondent’s experiences in
his country.” But an assessment of whether that particular incident was a “material element” of
Muhanna’s asylum application is impossible because the IJ refused to consider the application in
its entirety. Rather than address the numerous claims of persecution Muhanna apparently set out
in his asylum application, the IJ instead halted the proceedings, declaring that Muhanna was
“someone who is not honest at all” and whose asylum application was “frivolous in every
respect.”
It is also important to note that the finding that Muhanna deliberately fabricated the
stabbing incident in the asylum application fails to take into account the nature of the evidence
and of his admittedly shifting versions of the event. It appears from the record that something
happened to Muhanna: In the course of the hearing he showed the IJ a large scar he stated came

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from a stab wound. And the explanation he offered for the inconsistent testimony appears
plausible when viewed in light of the fact that Muhanna had no culpable motivation to make up
the story about the street fight. After all, the incident as described in the asylum application and
in his ultimate testimony was more helpful to his cause than his intermediate statements. For
him to lie on his application and then to abandon that lie for a denial that any stabbing had
occurred, and then for a story less helpful to his cause, appear to make far less sense than his
explanation that the story on the application was true but that he was afraid of telling the truth at
the hearing. Hence the inconsistency in his testimony does not necessarily support a finding that
the application was false, but rather tends only to show that Muhanna was not credible at one
point during the hearing.
But under 8 C.F.R. § 208.20 a finding of frivolousness does not flow automatically from
an adverse credibility determination in any event. Inconsistencies between testimony and an
asylum application, while certainly relevant to a credibility determination that may result in the
denial of an applicant’s asylum claim, do not equate to a frivolousness finding under Section
1158(d)(6), which carries with it much greater consequences. It is because of those severe
consequences that the regulation requires more: a finding of deliberate fabrication of a “material
element” of an application, plus an opportunity for the alien to account for inconsistencies.
Those requirements protect the same rights to factfinding and argument on one’s own behalf that
Abdulai teaches are protected by the Fifth Amendment.
Here, by imposing a frivolousness finding based not on a thorough examination of the
application but instead on her assessment of Muhanna’s credibility, and by consequently refusing
to allow further testimony, the IJ violated those rights and deprived Muhanna of due process.

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Thus the frivolousness finding cannot stand, and Muhanna must be given “a full and fair hearing
that allows [him] a reasonable opportunity to present evidence on [his] behalf” (Abdulrahman v.
Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003)) with respect to both his waiver and asylum
applications.
Muhanna’s Other Claims
After making the finding that Muhanna had filed a frivolous asylum application and was
therefore ineligible under Section 1158(d)(6) for the good faith marriage waiver or asylum, the IJ
also denied his applications for withholding of removal and protection under the Convention
(neither is considered an “immigration benefit” barred by the frivolousness finding). To be
entitled to withholding of removal under Section 1231(b)(3)(A), an alien must show a “clear
probability” that his or her life or freedom could be threatened in the proposed country of
removal (Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991)). And for protection under the
Convention an alien must show “that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal” (Tarrawally v. Ashcroft, 338 F.3d 180, 187 (3d
Cir. 2003)). In both cases the relevant implementing regulation directs that “the testimony of the
applicant, if credible, may be sufficient to sustain the burden of proof without corroboration” (8
C.F.R. §§ 208.16(b) and (c)(2)). Thus “[a]n alien’s credibility, by itself, may satisfy his burden
or doom his claim” as to both withholding of removal and protection under the Convention (Dia,
353 F.3d at 247). Here the IJ found that Muhanna was not credible and had therefore failed to
satisfy his burden with respect to the withholding of removal and Convention claims.
We review the IJ’s adverse credibility determination under the substantial evidence
standard (Tarrawally, 338 F.3d at 184). Under that standard the determination will be upheld to

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the extent that it is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole” (Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002)). For the
same reasons that we have concluded Muhanna was deprived of due process, we hold that the
IJ’s adverse credibility determination is not supported by substantial evidence: Instead her
premature decision to halt the proceedings based on a flawed frivolousness finding prevented the
development of a record upon which an adverse credibility determination could be made.
In this instance the bulk of the discussion in the IJ’s opinion about Muhanna’s credibility
as to the withholding and Convention claims focuses not on his assertions that his life would be
threatened or that he would be tortured were he removed to Jordan, but rather on the
inconsistencies in his testimony about his marriage. But one adverse credibility determination
does not beget another--as we said in Jian Lian Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004), “On the contrary, an IJ must justify each credibility finding with statements or record
evidence specifically related to the issue under consideration.” Only in passing does the IJ’s oral
decision address matters specifically related to the withholding and Convention claims:
In addition, as far as the Court is concerned, the respondent is incredible and is
fabricating information about his supposed withholding application because of his
misrepresentation about what happened to him the last time he was in Israel. At first he
claimed that he was arrested and then he backed off and admitted that he was really only
detained at the most a few hours at a check point in Ramallah. In addition, he vaguely
claims that the Jew came over to his brother’s house to attack his brother at night and this
took quite a few questions to even develop. The respondent, in addition, has lied about
the circumstances of his own stabbing as far as the Court is concerned.
We cannot say that such a cursory discussion of the withholding and Convention claims
contains “specific cogent reasons” that are “substantial and bear a legitimate nexus” (Chen Yun
Gao, 299 F.3d at 276) to the adverse credibility determination when the flawed nature of the

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prematurely concluded record is taken into account. We therefore hold that the IJ’s adverse
credibility finding as to Muhanna’s withholding and Convention claims is not supported by
substantial evidence in those terms. Those claims must also be reconsidered in light of a fully
developed record.
Conclusion
Because the IJ’s finding that Muhanna had filed a frivolous asylum application was made
without the findings of fact required by Section 1158(d)(6) and its implementing regulation, we
conclude that her decision to halt the proceedings based on that frivolousness finding was
premature and denied Muhanna his Fifth Amendment rights to obtain factfinding based on a
record produced before the IJ and to make arguments on his own behalf. Accordingly
Muhanna’s petition for review of the IJ’s order imposing the frivolousness finding is
GRANTED, with the result that his good faith marriage waiver and asylum claims must be
reconsidered. And because we further conclude that the IJ’s adverse credibility determination is
not supported by substantial evidence in light of the incompleteness of the record caused by the
IJ’s ruling, Muhanna’s petition for review is also GRANTED as to the IJ’s denial of his claims
for withholding of removal and protection under the Convention. We REMAND this case to the
BIA for proceedings consistent with this opinion.

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