    13-47
    Gao v. Lynch
                                                                                  BIA
                                                                            Zagzoug, IJ
                                                                          A200 745 364
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT
                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 16th day of December, two thousand fifteen.

    PRESENT:
             PETER W. HALL,
             GERARD E. LYNCH,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _____________________________________

    RONG GAO,
                   Petitioner,

                   v.                                      13-47
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Michael J. Campise, New York, N.Y.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Frances W. Fraser, Senior
                                  Litigation Counsel; Jacob A.
                                  Bashyrov, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Rong Gao, a native and citizen of China, seeks review

of a December 10, 2012, decision of the BIA affirming the

June 15, 2011, decision of an Immigration Judge (“IJ”) that

she had filed a frivolous asylum application.   In re Rong

Gao, No. A200 745 364 (B.I.A. Dec. 10, 2012), aff’g No. A200

745 364 (Immig. Ct. N.Y. City Jun. 15, 2011).   We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

    Because the BIA summarily affirmed the decision of the

IJ, we have reviewed the IJ’s decision.   Aslam v. Mukasey,

537 F.3d 110, 114 (2d Cir. 2008).   The standards of review

are well established.   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

     In finding Gao’s asylum application frivolous, within

the meaning of 8 U.S.C. § 1158(d)(6), the IJ complied with

the requirements that she must: (1) give Gao notice of the

consequences of filing a frivolous application; (2) make a

specific finding that Gao knowingly filed a frivolous

application; (3) identify sufficient evidence in the record

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to support the finding that a material element of the asylum

application was deliberately fabricated; and (4) allow Gao

sufficient opportunity to account for any discrepancies or

implausible aspects of the claim.   Mei Juan Zheng v.

Mukasey, 514 F.3d 176, 180 (2d Cir. 2008) (citing Matter of

Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007)); see also

Matter of B-Y-, 25 I. & N. Dec. 236, 241-42 (B.I.A. 2010).

    Gao argues that she timely recanted her testimony and

that the IJ erred by finding her application frivolous

despite the recantation.   Although it is an open issue

whether timely and voluntary recantation can relieve an

asylum applicant of the consequences of a frivolous filing,

the record does not establish that Gao’s recantation was

either voluntary or timely.   A review of the record reveals

that Gao filed her asylum application in 2010, she was

informed of the consequences of filing a frivolous

application, and she affirmed to the IJ that her application

was “true.”   She subsequently testified in conformity with

her false application at her merits hearing, and she did not

admit that she had fabricated her claim and testimony until

she was confronted during cross-examination with

documentation that essentially established her story was


                              3
untrue.   Under these circumstances, it cannot be said that

her recantation was timely and voluntary.   See Matter of M—,

9 I. & N. Dec. 118, 119 (B.I.A. 1960).   As to Gao’s due

process claim, given her admission that she fabricated

portions of her application and our prior holding that

“summary affirmance of IJ decisions by a single Board member

does not deprive an asylum applicant of due process,” Gao

has not established any error in the BIA’s use of summary

affirmance.   Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 157

(2d Cir. 2004).

    For the foregoing reasons, the petition for review is

DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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