Professional Documents
Culture Documents
Published
Published
No. 14-2250
Argued:
Decided:
DEPARTMENT
OF
JUSTICE,
Washington,
affirmed
filed
the
immigration
frivolous
ineligible
for
asylum
adjustment
judges
conclusion
application
of
status.
and
For
that
was
the
Ndibu
therefore
reasons
that
In July
withholding
Convention
Against
of
removal,
Torture
and
(CAT).
protection
Ndibu
under
claimed
that
the
he
return
to
the
Congo.
According
to
Ndibus
supporting
15
days,
during
which
he
was
endur[ing]
severe
J.A. 1542-43.
In
September
2004,
the
Department
of
Homeland
Security
for
being
documentation.
1182(a)(7)(A)(i)(I).
and
present
essentially
affidavit.
in
See
the
United
U.S.C.
States
without
1227(a)(1)(A);
repeated
the
claims
he
asserted
in
his
of
entering
the
United
States,
finding
that
Ndibus
for
regard.
its
adverse
Additionally,
credibility
the
determination
immigration
judge
in
this
concluded
that
denied
his
claim
for
withholding
of
removal.
Singh
v.
Holder, 699 F.3d 321, 332 (4th Cir. 2012) (To prevail on his
withholding of removal claim, [the applicant] must establish a
clear probability of persecution on the basis of race, religion,
nationality, political opinion, or membership in a particular
social
group.
explaining
Ndibu
her
lacked
(internal
decision,
credibility
quotation
the
marks
immigration
regarding
4
his
omitted)).
judge
implied
membership
in
In
that
the
302,
Ndibus
but
did
not
credibility
provide
in
specific
this
reasons
regard.
for
doubting
Furthermore,
the
regarding
his
political
affiliations,
the
evidence
if
the
he
returned
immigration
to
the
judge
DRC.
J.A.
denied
302.
relief
under
And,
the
J.A. 303.
immigration
establish,
judges
through
clear
conclusion
and
that
convincing
Ndibu
failed
evidence,
that
to
his
of
however,
J.A. 261.
withholding
the
BIA
of
found
removal
the
and
decision
relief
under
to
inadequate
be
J.A. 261.
that
not
the
reasons
immigration
for
her
judge
adverse
political affiliation].
did
credibility
J.A. 261.
5
CAT,
for
adequately
finding
the
as
explain
to
the
[Ndibus
alternative
conclusion
that
Ndibus
evidence
would
have
been
such
past
treatment,
if
credible,
constituted
J.A.
Thus,
the
BIA
remanded
the
matter
for
more
September
immigration
judge
2008,
for
Ndibu
the
failed
remanded
to
appear
proceedings,
before
and
he
the
was
seeking
to
adjust
his
status
[to
that
Because an
of
lawful
admissibility
requirement
was
problematic
for
Ndibu,
who
entered
material
fact,
J.A.
the
United
States
in
1000,
2001
in
using
that
a
(1)
he
Canadian
sought
to
documentation,
procure
or
or
admission
has
into
the
Ndibu
pursuant
to
General,
in
her
applied
U.S.C.
for
1182(i),
discretion,
to
procured)
United
visa,
States
or
other
other
8 U.S.C. 1182(a)(6)(C)(i).
waiver
which
waive
of
inadmissibility
permits
the
the
Attorney
application
of
his
parents.
Ndibu
married
his
wife,
United
States
Ndibu
admitted
to
the
court
that
his
application
May
23,
2013,
the
immigration
judge
issued
an
order
J.A.
77
(citing
C.F.R.
1208.20).
The
court
even
though
the
I-589
asylum
application
Ndibu
signed
determined
Ndibu
was
permanently
ineligible
for
any
8 U.S.C. 1158(d)(6).
J.A. 2.
J.A.
J.A. 2.
the
material
fabrications
contained
in
the
asylum
application.
The
BIA
likewise
rejected
Ndibus
argument
that
the
have
effective
notice
of
the
10
consequences
of
filing
Ndibu
with
frivolous
written
asylum
notice
of
the
application.
consequences
J.A.
3.
The
of
BIA
J.A. 3.
asylum
benefits.
frivolous
is
permanently
8 U.S.C. 1158(d)(6).
if
any
of
its
time
of
filing
an
for
immigration
An asylum application is
material
ineligible
elements
is
deliberately
application
for
asylum,
the
Attorney
the
alien
seeking
statutorily-required notice.
asylum
must
be
given
the
first
contends
that
he
did
not
receive
adequate
of
that
this
application
and
the
Id.
evidence
Moreover,
errors.
Ndibu acknowledges that the I-589 asylum application form
sets
forth
warning
about
the
consequences
of
filing
We
cannot
of
agree.
The
statute
requires
that
[a]t
the
time
frivolous
1158(d)(4)(A).
application
for
asylum.
U.S.C.
J.A.
1538.
time
of
because
filing.
the
U.S.C.
applicable
1158(d)(4)(A).
regulations
permit
In
fact,
filing
the
hearing
before
an
[immigration
judge],
placing
[t]he
Niang v. Holder, 762 F.3d 251, 254 (2d Cir. 2014) (per
(emphasis
added)
(internal
quotation
marks
omitted).
The INA makes no mention of the form that the required notice
must take, oral or written.
on
the
the
requirement
of
issue
I-589
has
ruled
asylum
that
the
application
1158(d)(4)(A)
without
written
satisfies
an
warning
the
set
notice
additional
oral
See
Niang, 762 F.3d at 254; Ruga v. U.S. Atty Gen., 757 F.3d 1193,
1197 (11th Cir. 2014); Pavlov v. Holder, 697 F.3d 616, 618 (7th
Cir. 2012); Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir.
14
2012); Ribas v. Mukasey, 545 F.3d 922, 92930 (10th Cir. 2008).
We find these decisions to be persuasive and join these courts
in
concluding
the
warning
supplied
on
the
I-589
form
is
interpretation
of
the
notice
provision,
which
Ndibu
We decline
Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
84243
(1984).
[D]eference
to
[the
agencys]
statutory
15
even
if
we
were
to
consider
the
line
of
BIA
151
(BIA
2007).
In
these
decisions,
the
BIA
did
not
conclude that the INA mandated additional oral warnings from the
immigration judge at the asylum hearing; rather, the BIA merely
suggested that it would be a good practice for an Immigration
Judge
who
believes
frivolous
asylum
attention
of
proceedings.
that
an
application
the
applicant
applicant
to
may
bring
prior
to
have
this
the
submitted
concern
to
conclusion
the
of
during
the
course
of
the
merits
hearing
that
Moreover,
This line of
is
required
to
satisfy
the
regulation
mandating
that
opportunity
to
account
for
any
discrepancies
or
added).
In sum, we conclude that the notice set forth in the I-589
application for asylum suffices to satisfy the requirement under
1158(d)(4)(A)
that
the
applicant
be
notified
judge
is
free
to
give
an
of
the
Although an
applicant
additional
unlicensed
counsel.
individual,
Accordingly,
and
Ndibu
17
later
argues
by
ineffective
that
affirming
legal
the
false
contents.
when
he
signed
the
application
attesting
to
its
preparer
and
counsel
for
his
frivolous
application,
is
In April 2008,
The
that [a] frivolous finding will be made only during the time the
asylum application is before the adjudicating body, not after a
final
determination
Petitioner
at
25.
has
already
been
taken.
thus
believes
that
Ndibu
once
Brief
of
the
BIA
coerced
by
the
court,
Ndibu
argued
the
This is a different
argument than the one Ndibu raised in the petition for review to
this court.
205, 210 (4th Cir. 2015) (observing that an alien who does not
raise a particular claim before the BIA fails to exhaust his
administrative remedies as to that claim such that the federal
courts
lack
jurisdiction
to
consider
it).
Accordingly,
we
accordance
with
the
foregoing
discussion,
we
deny
20