11-4156-ag
Niang v. Holder

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT
                                  ______________________

                                         August Term, 2013

                     (Argued: November 7, 2013          Decided: August 13, 2014)

                                       Docket No. 11-4156-ag
                                     ______________________

                                           GADE NIANG,

                                                                                        Petitioner,

                                                 -v.-

              ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                                                                                       Respondent.

                                     ______________________

Before:
                            SACK, HALL, LIVINGSTON, Circuit Judges.

                                     ______________________

        Petitioner seeks review of a decision of the Board of Immigration Appeals affirming an
immigration judge’s denial of his application for adjustment of status based on a finding that
Niang filed a frivolous asylum application. Because the written warning in that application
provided Niang adequate notice of the consequences of filing a frivolous application, he was
ineligible for all relief from removal. Therefore, we conclude that the agency did not err in
denying adjustment of status, and we DENY Niang’s petition.
                                    ______________________

                  H. RAYMOND FASANO, Youman, Madeo & Fasano, LLP, New York, NY, for
                  Petitioner.

                  YAMILETH G. DAVILA, Trial Attorney (Stuart F. Delery, Assistant Attorney
                  General, Civil Division; William C. Peachey, Assistant Director; Ada E. Bosque,
                  Trial Attorney, on the brief), Office of Immigration Litigation, U.S. Department
                  of Justice, Washington, D.C., for Respondent.
                                      ______________________


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PER CURIAM:

       Petitioner Gade Niang, a native and citizen of Senegal, seeks review of a decision of the

Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) denial of his

application for adjustment of status based on a finding that Niang was ineligible for all relief for

having filed a frivolous asylum application. Because Niang received adequate notice of the

consequences of filing a frivolous application through the written warning on the asylum

application, we conclude that the agency did not err in denying his adjustment application, and

we deny the petition for review.

                                          BACKGROUND

       Gade Niang, a native and citizen of Senegal, entered the United States in 2002 as a

nonimmigrant visitor. In 2005, Niang applied for asylum, withholding of removal and relief

under the Convention Against Torture, asserting that he was from the Ivory Coast where he had

been persecuted on account of his ethnicity and his political opinion. During a subsequent

interview with an asylum officer, Niang signed a declaration stating that he knew the contents of

his application and attesting to their truth. The asylum officer referred Niang’s application to an

IJ on the suspicion that Niang was not Ivorian, and Niang was placed in removal proceedings.

       Niang appeared before an IJ in 2006, and, through counsel, confirmed the truth, accuracy,

and completeness of the contents of his asylum application and contested the Government’s

allegation that he was a native and citizen of Senegal. In light of evidence demonstrating that

Niang was Senegalese, the IJ instructed counsel to inform Niang of the risks of filing a frivolous,

or fraudulent, asylum application. Niang initially proceeded with but later withdrew his

application, admitting he was Senegalese. He then applied for adjustment of status based on an

approved I-130 immigrant visa petition filed on his behalf by his wife, a United States citizen.



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Following a merits hearing, the IJ concluded that Niang was barred from any immigration

benefits because he knowingly filed a frivolous asylum application. The IJ consequently denied

adjustment of status and ordered Niang removed to Senegal. On appeal, Niang argued that he

was not given adequate notice as required by 8 U.S.C. § 1158(d). In a September 2011 decision,

the BIA rejected this argument, pointing out that Niang received both written notice through his

asylum application and oral warnings through his attorney. The BIA further agreed with the IJ

that Niang had knowingly filed a frivolous application and dismissed the appeal. Niang now

petitions this Court for review of the BIA’s decision.

                                            DISCUSSION

       We review the agency’s factual findings to determine whether they are supported by

substantial evidence and its conclusions of law de novo. See Yanqin Weng v. Holder, 562 F.3d

510, 513 (2d Cir. 2009). Because the BIA adopted and supplemented the decision of the IJ, we

have reviewed the decision of the IJ as supplemented by the BIA. Yan Chen v. Gonzales, 417

F.3d 268, 271 (2d Cir. 2005).

       “A person who makes an application for asylum determined to be ‘frivolous,’ or

deliberately and materially false, is subject to a grave penalty: permanent ineligibility for most

forms of relief under the immigration laws.” Mei Juan Zheng v. Mukasey, 514 F.3d 176, 178 (2d

Cir. 2008); see 8 U.S.C. § 1158(d)(6) (making an alien who “has knowingly made a frivolous

application for asylum . . . permanently ineligible for any benefits” under the INA). The

frivolous filing bar does not apply, however, if the applicant has not “received the notice under

paragraph (4)(A).” 8 U.S.C. § 1158(d)(6). That paragraph states that “[a]t the time of filing an

application for asylum, the Attorney General shall . . . advise the alien . . . of the consequences,

under paragraph (6), of knowingly filing a frivolous application for asylum.” § 1158(d)(4)(A);




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see also Mei Juan Zheng, 514 F.3d at 180 (noting that applicants are entitled to various

“procedural safeguards” prior to having a finding of frivolousness entered against them); Matter

of Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007) (same). In this case, it is undisputed that Niang

knowingly filed a frivolous asylum application. He argues, however, that he did not receive

adequate notice under § 1158(d)(4)(A) warning him against such filings. We disagree.

        Niang first applied for asylum by mailing to an asylum office his signed I-589

application, which contained a written warning that “[a]pplicants determined to have knowingly

made a frivolous application for asylum will be permanently ineligible for any benefits under the

Immigration and Nationality Act [(“INA”)].” Niang may not have received an explicit oral

warning of those consequences from either the asylum officer who interviewed him or the IJ to

whom his application was referred, but the IJ intimated that there were grave consequences and

encouraged Niang’s attorney to make those consequences clear to him, which the attorney agreed

to do

        Niang asserts that the INA requires the IJ to provide warnings in addition to the one

found in the I-589 form, an issue we have not previously resolved. “While in general we are

wary of determining significant issues not yet passed upon by the agency, the notice issue here

involves the proper interpretation of a statute under undisputed facts rather than the resolution of

an issue committed in the first instance to agency determination, and may be resolved as a matter

of law.” Ribas v. Mukasey, 545 F.3d 922, 929 (10th Cir. 2008) (internal citation omitted); cf. Shi

Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 n.15 (2d Cir. 2007) (en banc) (“We, rather

than the BIA, have primary authority under Chevron to determine whether a particular agency

interpretation is consistent with the unambiguously expressed intent of Congress.”), cert. denied,

553 U.S. 1053 (2008).




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        The statute plainly states that at the time an alien files an asylum application, the

Attorney General must advise him that he will be permanently ineligible for immigration

benefits if he knowingly files a frivolous asylum application. Although we understand that IJs

frequently provide a warning of the consequences of filing a frivolous application, nothing in the

INA expressly requires that the warning be given by an IJ. See 8 U.S.C. § 1158(d)(4)(A), (d)(6).

The INA requires only that the applicant “receive[]” notice at the time of filing. § 1158(d)(6);

see id. § 1158(d)(4)(A). We need not decide if any other type of warning would satisfy the

notice requirement because we conclude that the written warning contained in Niang’s asylum

application provided him adequate notice.1

        In so ruling we join the Seventh, Ninth, Tenth and Eleventh Circuits. When confronted

with a defective oral warning, the Tenth Circuit held that the provision of an adequate oral

warning was irrelevant because the written warning contained in the asylum application afforded

sufficient notice of the consequences of filing a frivolous application. Ribas, 545 F.3d at 930.

The Seventh, Ninth and Eleventh Circuits have since joined the holding in Ribas. Ruga v. U.S.

Attorney Gen. No. 13-14377, 2014 WL 3031304, at*2-3 (11th Cir. July 2, 2014) (concluding that

the written warning on the I-589 asylum application satisfies § 1158(d)(4)(A), rendering an oral

warning by an IJ unnecessary); Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012) (same);

Pavlov v. Holder, 697 F.3d 616, 618 (7th Cir. 2012) (same).

        As the Tenth Circuit noted, the “Attorney General’s regulations permit filing the

application in a variety of different ways,” including by mail or at a hearing before an IJ, but “in

each case the alien is required to complete and sign the asylum application form and to provide it

to the agency.” Ribas, 545 F.3d at 929; see 8 C.F.R. § 208.4(b). The warning on the asylum

1
  Niang does not assert before this Court that he did not receive or was unable to understand the warning
that appears on the signature page of his asylum application form.



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application form itself, therefore, is the only means under the current regulatory scheme by

which notice may be given at the time of filing, regardless of the manner of filing. See 8 U.S.C.

§ 1158(d)(4)(A) (requiring that notice be provided at the time of filing). This reading aligns with

the BIA’s holding that “the only action required to trigger the frivolousness inquiry is the filing

of an asylum application.” Matter of X-M-C-, 25 I. & N. Dec. 322, 324 (BIA 2010); see also

Mei Juan Zheng, 672 F.3d at 184 (giving Chevron deference to Matter of X-M-C-).

       Because the written warning provided on the asylum application alone is adequate to

satisfy the notice requirement under 8 U.S.C. § 1158(d)(4)(A) and because Niang signed and

filed his asylum application containing that warning, he received adequate notice warning him

against filing a frivolous application. As a consequence of having ignored that warning, Niang

was ineligible for adjustment of status. See id. §§ 1158(d)(4)(A), (d)(6) (barring benefits under

chapter 12 of title 8); id. § 1255 (adjustment provision).

                                           CONCLUSION

       The petition for review is DENIED.




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