                            NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                       MAY 11 2017
                                                                      MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                      U.S. COURT OF APPEALS




SEBINA SHAH,                                    No.    13-74104

             Petitioners,                       Agency No. A099-042-212

v.
                                                 MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,

             Respondent.
                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted May 8, 2017**
                               Pasadena, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and RICE,*** Chief District
Judge.

      Petitioner, Sebina Shah, native and citizen of Nepal, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an




      *
             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).
      ***
             The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
Immigration Judge’s (“IJ”) decision denying her application for adjustment of

status. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for

review.

       The BIA’s determination that an applicant knowingly made a frivolous

application for asylum is reviewed de novo for compliance with the BIA’s four

established procedural requirements. Kulakchyan v. Holder, 730 F.3d 993, 995 n.1

(9th Cir. 2013) (per curiam) (citing Matter of Y- L-, 24 I.&N. Dec. 151 (B.I.A.

2007)). We review the BIA’s findings of fact for substantial evidence. See id. at

995.

       Pursuant to 8 U.S.C. § 1158(d)(6), if “an alien has knowingly made a

frivolous application for asylum” and has received appropriate notice under

§ 1158(d)(4), “the alien shall be permanently ineligible for any benefits” under the

Immigration and Nationality Act (“INA”). Notice is adequate if the alien is advised

“of the privilege of being represented by counsel and of the consequences . . . of

knowingly filing a frivolous application.” 8 U.S.C. § 1158(d)(4). An application is

frivolous “if any of its material elements is deliberately fabricated.” 8 C.F.R.

§ 1208.20.


       Petitioner essentially raises two challenges to the BIA’s decision. First,

Petitioner argues that the BIA’s frivolousness determination cannot be sustained

because she was not afforded the required procedural safeguards, including notice


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and an opportunity to respond, and because she never testified to any false facts.

Second, Petitioner argues that she was denied a fair and full hearing because the IJ

did not consider her I-601 waiver.

      Here, the BIA determined that Petitioner was barred from adjustment of

status because she filed a frivolous asylum application. Contrary to Petitioner’s

contentions, she received adequate notification on her asylum application of the

consequences of filing a frivolous asylum application, pursuant to 8 U.S.C.

§ 1158(d)(4)(A), and was not denied an opportunity to explain the fraudulent

information. See 8 U.S.C. § 1158(d)(6). The record supports that Petitioner signed

her initial asylum application, which contained a warning that applicants who

knowingly make a frivolous application for asylum “will be permanently ineligible

for any benefits under the Immigration and Nationality Act.” See Cheema v.

Holder, 693 F.3d 1045, 1049-50 (9th Cir. 2012) (holding that “as a matter of law,

the written advisals on the I-589 asylum application form provide applicants with

adequate notice of the consequences of filing a frivolous asylum application”).

      Moreover, at her asylum interview, Petitioner re-signed the asylum

application reaffirming the incorrect information, as well as a “Declaration of

Applicant” that included the following statement: “I also understand that if I filed

my asylum application on or after April 1, 1997, I may be forever barred from

receiving any benefits under the Immigration and Nationality Act if I knowingly


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made a frivolous application for asylum. A frivolous application for asylum is an

application that contains deliberately fabricated statements.” Shah’s interpreter at

the asylum interview also signed the document and stated, “I certify that I am

qualified to act as an Interpreter and that I have read the Declaration of Applicant

to the individual named above. She stated that she understood me.” See

Kulakchyan, 730 F.3d at 995 (holding that the standard warning is sufficient when

it is provided in a language the applicant understands). Thus, there was substantial

evidence to support the IJ’s and BIA’s finding that Petitioner received the required

warnings.

      At a hearing in September of 2012, Petitioner admitted that the contents of

her asylum application were false and that she “swore to tell the truth” during the

asylum interview. Petitioner testified that she only corrected the 2002 date of entry,

and acknowledged that the information regarding her claimed reentry in 2005 that

she provided to the asylum officer under oath was false. Therefore, substantial

evidence also supports the IJ’s and BIA’s determination that Petitioner deliberately

and knowingly fabricated a material element of her asylum application. See

Kulakchyan, 730 F.3d at 995–96 (citing Kalilu v. Mukasey, 548 F.3d 1215, 1217

n.2 (9th Cir. 2008)) (stating that date of entry falsification is a material element).

      Petitioner’s argument that the IJ erred by not considering her I-601 waiver,

which Petitioner intimates may have excused her frivolous asylum application, also


                                           4
fails because a frivolousness finding operates as a complete bar to relief under the

INA. See 8 U.S.C. § 1158(d)(6); Kulakchyan, 730 F.3d at 995–96.

      Because Petitioner filed a frivolous asylum application, the BIA properly

found her ineligible for adjustment of status. See 8 U.S.C. § 1158(d)(6). We uphold

the BIA’s finding of frivolousness.

      PETITION DENIED.




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