                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-2250


HENRI KAMENGA NDIBU,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



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


Argued:   January 27, 2016                  Decided:   May 19, 2016


Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit
Judges.


Petition for review denied by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Thacker and Judge
Harris joined.


ARGUED: Allison Lukanich, MELO & HURTADO PLLC, Raleigh, North
Carolina; Jim Melo, U.S. COMMITTEE FOR REFUGEES & IMMIGRANTS,
Raleigh, North Carolina, for Petitioner.    Jennifer A. Singer,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Nitin Kumar Goyal, Kevin Schroeder, MELO
& HURTADO PLLC, Raleigh, North Carolina, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Russell J.E. Verby, Senior Litigation Counsel,
Nancy   K.  Canter,  Trial  Attorney,  Office   of   Immigration
Litigation, UNITED STATES   DEPARTMENT   OF   JUSTICE,   Washington,
D.C., for Respondent.




                               2
TRAXLER, Chief Judge:

      Henri Kamenga Ndibu petitions for review of a final order

of removal issued by the Board of Immigration Appeals (“BIA”)

which   affirmed        the   immigration         judge’s    conclusion         that    Ndibu

filed       a     frivolous      asylum      application          and     was     therefore

ineligible        for   adjustment      of    status.        For    the    reasons      that

follow, we deny Ndibu’s petition for review.

                                             I.

      Ndibu, a native and citizen of the Democratic Republic of

the Congo (“DRC”), entered the United States in September 2001

using a Canadian passport that did not belong to him.                              In July

2004, after evading the attention of immigration officials for

nearly three years, Ndibu filed an affirmative application for

asylum,         withholding      of   removal,       and     protection         under     the

Convention        Against     Torture     (“CAT”).          Ndibu       claimed    that    he

feared persecution on account of his political opinion were he

to    return       to   the   Congo.         According       to    Ndibu’s      supporting

affidavit, he was living in the DRC in June 2003 when he was

arrested by government security forces because of his membership

in the Army of Victory Church and participation in the “Let us

Save the Congo” movement.                 Ndibu alleged that he was detained

for    15       days,   during    which      time    he     was    “endur[ing]         severe

mistreatments, . . . sexual abuses imposed over us by the police

officers, and other types of tortures.”                     J.A. 1542-43.

                                              3
       In     September      2004,     the      Department            of   Homeland        Security

(“DHS”) placed Ndibu in removal proceedings, charging him with

removability         for    being    present        in     the    United          States    without

valid       documentation.                See       8     U.S.C.           §§     1227(a)(1)(A);

1182(a)(7)(A)(i)(I).               At the removal hearing, Ndibu testified

and     essentially         repeated        the         claims     he       asserted        in     his

affidavit.          In April 2006, the immigration judge denied Ndibu

relief from removal.               The immigration judge concluded that Ndibu

failed to demonstrate that he filed his asylum claim within one

year     of    entering       the    United         States,        finding         that     Ndibu’s

testimony that he arrived in the United States in 2003 was not

credible and that he failed to present other evidence supporting

an entry date of 2003.                The immigration judge offered specific

reasons       for    its     adverse        credibility           determination            in    this

regard.         Additionally,         the    immigration              judge       concluded      that

Ndibu failed to establish “a clear probability of persecution”

and    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.”      (internal        quotation            marks          omitted)).          In

explaining       her      decision,       the     immigration           judge       implied      that

Ndibu       lacked     credibility        regarding          his       “membership          in     the

                                                4
political organizations that he claimed to have belonged to,”

J.A.   302,     but       did   not     provide         specific        reasons      for    doubting

Ndibu’s       credibility          in        this         regard.             Furthermore,         the

immigration judge stated that even if Ndibu’s testimony had been

credible       regarding         his    political           affiliations,            the    evidence

still would have failed to demonstrate a “a clear probability of

persecution”         if    he    returned          to     the     DRC.        J.A.    302.        And,

finally,       the        immigration             judge     denied        relief        under      the

Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c),

stating summarily that Ndibu failed to show “that it would be

more likely than not that [Ndibu] would be tortured if he were

removed to the [DRC].”                J.A. 303.

       Ndibu appealed, and in April 2008, the BIA affirmed the

denial of asylum, concluding that substantial evidence supported

the    immigration          judge’s          conclusion           that    Ndibu       “failed       to

establish,         through       clear       and     convincing          evidence,         that    his

asylum application was filed within one year of his arrival in

the United States.”               J.A. 261.              As to the immigration judge’s

denial    of    withholding            of    removal        and    relief       under      the    CAT,

however,       the    BIA       found       the    decision        to    be    “inadequate         for

purposes of our appellate review.”                         J.A. 261.          The BIA concluded

that   the     immigration         judge          “did     not     adequately         explain      the

reasons      for     her    adverse         credibility           finding      as     to   [Ndibu’s

political affiliation].”                    J.A. 261.           The BIA also rejected the

                                                    5
alternative         conclusion      that   Ndibu’s    evidence      would    have      been

insufficient even if Ndibu’s testimony had been credible because

the immigration judge “failed to make a specific finding as to

whether         such    past        treatment,       if      credible,      constituted

persecution on account of a protected ground, and, if so, why

the presumption of 8 C.F.R. § 1208.16(b)(1) would be overcome.”

J.A.       262. 1    Thus,    the    BIA   remanded        the   matter    “for   a    more

complete decision” as to the withholding and CAT claims.

       In      September     2008,    Ndibu       failed    to    appear    before     the

immigration         judge    for    the    remanded       proceedings,     and    he   was

ordered removed in absentia.                  In November 2010, however, the

immigration judge granted Ndibu’s motion to reopen proceedings

on the grounds that Ndibu did not receive sufficient notice of

the hearing following remand from the BIA.

       During the proceedings on the remanded claims for relief

from removal, Ndibu, represented by new counsel, applied for an


       1The applicable regulation provides that “[i]f the
applicant is determined to have suffered past persecution in the
proposed country of removal on account of” one of the protected
grounds, “it shall be presumed that the applicant’s life or
freedom would be threatened in the future in the country of
removal” for the same reason.      8 C.F.R. § 1208.16(b)(1)(i).
“This presumption may be rebutted if . . . [the] immigration
judge finds by a preponderance of the evidence” that “[t]here
has been a fundamental change in circumstances such that the
applicant's life or freedom would [no longer] be threatened” or
“[t]he applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country
of removal.” Id.


                                              6
adjustment of status on the basis of his marriage to a United

States citizen in 2002.                 See 8 U.S.C. § 1255(a).                    “Because an

alien    seeking        to    adjust     his       status      [to    that      of     a    lawful

permanent resident] is in a position similar to that of an alien

seeking entry into the United States,” Ferrans v. Holder, 612

F.3d 528, 531 (6th Cir. 2010), he is required to establish that

he is admissible in the first place, see 8 U.S.C. § 1255(a).

The   admissibility           requirement       was     problematic         for       Ndibu,      who

admitted to the immigration court that he had previously “sought

to procure an immigration benefit by fraud or by concealing or

misrepresenting         a     material    fact,”        J.A.    1000,      in     that      (1)   he

first    entered      the      United     States        in    2001    using       a    “Canadian

Passport issued to Charles Legault” and (2) he “[made] false

statements to the Immigration Court so that [he] could obtain

asylum,” J.A. 1001.              An alien is inadmissible who “by fraud or

willfully misrepresenting a material fact, seeks to procure (or

has     sought     to        procure     or     has      procured)         a    visa,        other

documentation,        or      admission       into      the    United      States      or    other

benefit provided under [the INA].”                      8 U.S.C. § 1182(a)(6)(C)(i).

Therefore,       Ndibu        applied     for       a    waiver       of    inadmissibility

pursuant    to    8     U.S.C.     §    1182(i),        which     permits       the      Attorney

General,    in    her        discretion,      to     “waive     the   application            of   [§

1182(a)(6)(C)(i)] in the case of an immigrant who is the spouse

. . . of a United States citizen.”

                                                7
       At the waiver hearing, Ndibu testified that he entered this

country on September 8, 2001, using the aforementioned Canadian

passport which was obtained for him by his parents because they

believed it was unsafe for then-19-year-old Ndibu to remain in

the DRC.     Ndibu claimed that he did not want to enter the United

States under false pretenses but eventually acceded to pressure

from   his   parents.    Ndibu   married     his     wife,   a   United   States

citizen, in December 2002.            He subsequently asked his brother,

who enjoyed permanent legal resident status, to help him adjust

his status.      Ndibu’s brother incorrectly advised him that the

only way for him to obtain an adjustment of status was to apply

for asylum, and referred Ndibu to a friend named George, who was

not a lawyer but prepared the asylum application for Ndibu and

helped him file it in 2004.             Ndibu testified that George had

concocted the facts supporting his asylum claim that he feared

political persecution if he were to return to the DRC, and Ndibu

admitted falsely testifying at the asylum hearing that he was

tortured and sexually abused during his alleged 2003 detention.

Likewise,    Ndibu   admitted    to    the   court    that   his   application

falsely represented that he arrived in 2003 and that he signed

the asylum application knowing that it was false. Ndibu also




                                        8
acknowledged that he lied on the application by stating that he

was not married. 2

     Ndibu nonetheless suggested to the immigration court that,

despite having made a mistake in agreeing to submit a false

asylum claim, he had otherwise lived as a law-abiding member of

the community and that he was worthy of a fraud waiver to enable

him to adjust his status and remain in the United States with

his family.

     On   May    23,   2013,   the       immigration   judge   issued    an   order

denying Ndibu’s applications for a waiver of inadmissibility and

an adjustment of status.          The immigration judge found that Ndibu

“knowingly made a frivolous application for asylum,” 8 U.S.C. §

1158(d)(6), and “‘deliberately fabricated’ material elements of

his claim after having been advised of the consequences for so

doing,”   J.A.    77    (citing      8    C.F.R.   §   1208.20).        The   court

specifically noted that Ndibu “knew it was false when he claimed


     2 After asylum was denied in 2004, Ndibu hired a Maryland
immigration attorney to represent him.      Ndibu testified that
this attorney did not meet with Ndibu in person, explore his
options or take any steps at all to assist him and simply
continued forward with the false asylum claim. According to the
record, this attorney was later convicted of conspiracy to
prepare false asylum applications, immigration fraud, and
obstruction of official immigration proceedings.

     After the removal order was entered against Ndibu in
absentia, he hired his current counsel who has provided
excellent representation in the pursuit of an adjustment of
status for Ndibu.


                                           9
[that he was] tortured and sexually abused in the Congo,” J.A.

77,    even    though     the     I-589     asylum   application      Ndibu    signed

expressly warned against filing a frivolous claim for asylum.

As a consequence of the frivolousness finding, the immigration

judge    determined       Ndibu     was     “permanently   ineligible        for    any

benefits under [the INA].”               8 U.S.C. § 1158(d)(6).

       The BIA dismissed Ndibu’s subsequent appeal. The BIA agreed

that Ndibu was permanently barred from receiving any immigration

benefits because he “knowingly made a frivolous application for

asylum after having been advised of the consequences of doing

so.”     J.A. 2.        The BIA observed that Ndibu “conceded at his

hearing that he fabricated numerous aspects of his claim . . . ,

including his date of entry, his claimed detention and torture

in [the DRC], and his marital status, among other things.”                         J.A.

2.      Ndibu acknowledged to the BIA that he signed the asylum

application knowing that it contained falsities but explained

that he did so because “‘[he] was under pressure, and . . . made

a mistake.’”           J.A. 2.      The BIA found no clear error in the

immigration judge’s determination that this explanation did not

excuse       the     material     fabrications       contained   in    the    asylum

application.

       The     BIA     likewise     rejected     Ndibu’s    argument       that     the

frivolous application bar should not be applied because he did

not    have    effective        notice    of   the   consequences     of   filing     a

                                            10
frivolous asylum application.                   The BIA, like the immigration

judge, noted that the standard asylum application form I-589

provided     Ndibu    “with      written    notice    of    the   consequences         of

filing   a   frivolous      asylum       application.”         J.A.     3.      The   BIA

concluded that this constituted adequate warning under 8 U.S.C.

§ 1158(d)(6).

      Next, the Board found that the involvement of third parties

(such as his brother’s friend George) in the application process

did not excuse Ndibu’s fraudulent statements.                      The BIA pointed

out that Ndibu had “numerous opportunities . . . to correct the

false statements” but failed to do so, and that he “conceded

that the handwriting throughout the application was his, and

that he signed the document . . . aware . . . the information

contained therein [was] false.”                   J.A. 3.      The BIA therefore

dismissed Ndibu’s appeal.                Ndibu subsequently petitioned this

court for review.

                                           II.

      An alien who “has knowingly made a frivolous application

for   asylum”        is    “permanently          ineligible”      for        immigration

benefits.      8 U.S.C. § 1158(d)(6).                An asylum application is

frivolous    “if     any    of     its   material    elements     is     deliberately

fabricated.” 8 C.F.R. § 1208.20.                  The INA mandates that “[a]t

the   time   of    filing     an    application      for   asylum,      the    Attorney

General shall . . . advise the alien . . . of the consequences .

                                           11
. . of knowingly filing a frivolous application for asylum.”               8

U.S.C. § 1158(d)(4)(A).      Notice is a prerequisite to a finding

of frivolousness; before an application for asylum is declared

frivolous,   the     alien   seeking    asylum     must    be   given   the

statutorily-required notice.     See 8 U.S.C. § 1158(d)(6) (“If the

Attorney General determines that an alien has knowingly made a

frivolous application for asylum and the alien has received the

notice under paragraph (4)(A), the alien shall be permanently

ineligible for any benefits under [the INA] . . . .” (emphasis

added)). 3

     Ndibu   first   contends   that    he   did   not    receive   adequate

notice of the consequences of filing a frivolous asylum claim.

The record reflects that on July 22, 2004, Ndibu printed his

name and signed his asylum application directly underneath the


     3 The BIA has provided a list of requirements that must be
met before an asylum application is declared frivolous:

          (1) notice to the alien of the consequences of
     filing a frivolous application; (2) a specific finding
     by the Immigration Judge or the [BIA] that the alien
     knowingly   filed   a    frivolous  application;   (3)
     sufficient evidence in the record to support the
     finding that a material element of the asylum
     application was deliberately fabricated; and (4) an
     indication that the alien has been afforded sufficient
     opportunity to account for any discrepancies or
     implausible aspects of the claim.

In re Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007); see 8 C.F.R. §
1208.20. For our purposes, only the notice requirement is at
issue.


                                   12
paragraph labeled “WARNING.”             That paragraph warns, among other

things, 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.”

J.A. 1538.         By signing the application, Ndibu affirmed “under

penalty    of     perjury”   that   “this      application    and    the    evidence

submitted with it are all true and correct.”                     Id.       Moreover,

during the initial asylum hearing in April 2006, the immigration

judge asked Ndibu if he had any changes or additions to make to

the application.         Ndibu’s counsel noted only a few typographical

errors.

       Ndibu acknowledges that the I-589 asylum application form

sets     forth     a   warning   about     the   consequences        of    filing    a

frivolous asylum application.             Ndibu argues, however, that this

printed notice is inadequate and that § 1158(d)(4)(A) requires

the immigration judge to provide an oral warning as well.                           We

cannot    agree.       The   statute     requires    that    “[a]t   the    time    of

filing an application for asylum, the Attorney General shall . .

. advise the alien . . . of the consequences . . . of knowingly

filing     a     frivolous   application       for   asylum.”         8    U.S.C.    §

1158(d)(4)(A).         The warning supplied by the I-589 form clearly

satisfies these basic requirements by advising asylum applicants

that they will be “permanently ineligible for any benefits under

the [INA]” if they knowingly file a frivolous application.                      J.A.

                                          13
1538.       And, because every asylum applicant must complete, sign

and submit an I-589 form, the inclusion of the warning on the

form itself ensures that the required notice is received “[a]t

the   time      of     filing.”          8    U.S.C.   §     1158(d)(4)(A).        In    fact,

because         the        applicable          “regulations         permit      filing    the

application in a variety of different ways, including by mail or

at    a    hearing         before   an       [immigration     judge],”       placing    “[t]he

warning on the asylum 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.”        Niang v. Holder, 762 F.3d 251, 254 (2d Cir. 2014) (per

curiam)      (emphasis           added)      (internal     quotation      marks   omitted).

The INA makes no mention of the form that the required notice

must take, oral or written.                     It simply does not require that an

immigration judge advise an alien—orally or in in writing—of the

consequences of knowingly filing a frivolous application.

          Ndibu concedes that every circuit court of appeals to have

considered       the        issue   has      ruled    that    the    written    warning   set

forth      on   the        I-589    asylum      application         satisfies    the    notice

requirement           of     §   1158(d)(4)(A)         without       an   additional      oral

warning from an immigration judge at the asylum hearing.                                  See

Niang, 762 F.3d at 254; Ruga v. U.S. Att’y 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, 929–30 (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

sufficient in and of itself and need not be supplemented by the

immigration judge. 4

     Nonetheless, Ndibu urges us to ignore our own plain reading

of the text, break from our sister circuits and defer to the

BIA’s    interpretation      of   the     notice      provision,   which     Ndibu

contends is contrary to the foregoing line of cases.                    We decline

to do so, for a couple of reasons.                 First, because the language

of the statute is clear and unambiguous, “that is the end of the

matter; for the court, as well as the agency, must give effect

to the unambiguously expressed intent of Congress.”                        Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

842–43    (1984).         “[D]eference        to   [the   agency’s]      statutory

interpretation is called for only when the devices of judicial

     4  We further note that, as in the cases decided by our
sister circuits, there is no credible claim here that a language
barrier prevented Ndibu from understanding the consequences of
filing a frivolous asylum application, as supplied on the I-589
form. See Niang, 762 F.3d at 254 n.1; Ruga, 757 F.3d at 1196;
Pavlov, 697 F.3d at 618–19; Cheema, 693 F.3d at 1049 n.4; Ribas,
545 F.3d at 930.    Ndibu conceded before the immigration judge
that he was aware “of the consequences of knowingly filing a
frivolous asylum claim,” J.A. 207, and that the notice
requirement “ha[d] been clearly complied with,” J.A. 208.    His
claim before this court that he did not understand the
consequences stated on the I-589 form is thus foreclosed by the
record.



                                         15
construction have been tried and found to yield no clear sense

of congressional intent.”                  General Dynamics Land Sys., Inc. v.

Cline, 540 U.S. 581, 600 (2004).                     It is clear that Congress did

not intend to require oral notice from an immigration judge to

satisfy § 1158(d)(4)(A).

       Second,       even    if     we   were      to    consider         the    line     of    BIA

decisions relied upon by Ndibu, these decisions do not aid him.

See Matter of X-M-C-, 25 I. & N. Dec. 322 (BIA 2010); Matter of

B-Y-, 25 I. & N. Dec. 236 (BIA 2010); Matter of Y-L-, 24 I. & N.

Dec.    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          that   an   applicant         may       have    submitted       a

frivolous      asylum       application         to      bring      this    concern       to     the

attention       of     the        applicant      prior        to     the        conclusion       of

proceedings.”         Matter of Y-L-, 24 I. & N. Dec. at 159-60; see

Matter of B-Y-, 25 I. & N. Dec. at 242 (“[O]ur ‘good practice’

suggestion in Matter of Y-L- was not meant to add a blanket

requirement that an Immigration Judge must provide additional

warnings       during       the    course     of        the   merits       hearing       that     a

frivolousness determination is being considered.”).                                     Moreover,

the purpose of this particular “good practice” directive from

the BIA was “to afford a sufficient opportunity [for the asylum-

                                              16
seeker] to account for discrepancies” in the application for

asylum.      Matter of Y-L-, 24 I & N Dec. at 159.                    This line of

decisions does not purport to interpret the manner in which the

notice required at the time of filing under § 1158(d)(4)(A) is

to be issued; rather, these decisions provide guidance as to

what    is   required   to     satisfy      the    regulation       mandating     that

“during the course of the proceedings, [the applicant] [have]

sufficient     opportunity     to     account      for    any     discrepancies    or

implausible aspects of the claim.”                8 C.F.R. § 1208.20 (emphasis

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   of      the

consequences of filing a frivolous application.                        Although an

immigration     judge   is     free    to     give   an    applicant     additional

warnings during the hearing, there is no statutory requirement

that he do so.

                                       III.

       We touch briefly on Ndibu’s remaining arguments, finding

them to be without merit.             Ndibu asserts that the notice was

inadequate because his English ability was limited at the time

he filed his initial application and because he was assisted by

an     unlicensed    individual,      and      later      by    ineffective     legal

counsel.        Accordingly,        Ndibu      argues      that     affirming      the

                                         17
frivolousness finding would amount to a due process violation.

As the Attorney General points out, however, Ndibu acknowledged

under oath at the hearing in March 2013 that he knew when he was

signing the asylum application in 2004 that it contained false

information.     Specifically, he admitted that he falsely claimed

he was not married, falsely claimed he entered this country in

July 2003, and falsely testified that he was detained in the

DRC, tortured and sexually abused on account of his political

affiliations.     Ndibu acknowledged that he knew the information

was   false   when   he   signed   the        application   attesting   to   its

contents.     Accordingly, Ndibu’s assertion now that he did not

know what he was doing due to a language barrier, and blaming

his   preparer   and   counsel     for    his    frivolous   application,     is

unavailing, since he clearly stated that he knowingly lied and

committed perjury. 5       Given that he acknowledged intentionally

lying on his application and committing perjury, Ndibu cannot

show prejudice to support a due process claim.

      Ndibu finally asserts that it was error for the immigration

judge to make a frivolousness finding because the issue was not

properly before the immigration judge on remand.               In April 2008,


      5Further, as the Attorney General notes, Ndibu made no
attempt to comply with the requirements of Matter of Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988), as required to set forth an
ineffective assistance claim in immigration proceedings.      See
Xing Yang Yang v. Holder, 770 F.3d 294, 299 n.6 (4th Cir. 2014).


                                         18
the BIA sustained the immigration judge’s denial of asylum on

the basis that Ndibu failed to demonstrate that he applied for

asylum within one year of his arrival in the United States.                      The

BIA remanded Ndibu’s claims for withholding of removal under the

INA and the CAT; therefore, Ndibu’s claim for asylum was not

covered by the remand.         Ndibu argues that § 1158(d)(6) “implies

that [a] frivolous finding will be made only during the time the

asylum application is before the adjudicating body, not after a

final     determination   has     already      been     taken.”          Brief   of

Petitioner    at    25.   Ndibu      thus    believes    that     once    the    BIA

affirmed the immigration judge’s denial of asylum, his asylum

claim was no longer a “live” issue and it was improper on remand

for the immigration judge to make a frivolousness finding.

     Ndibu did not raise this particular argument before the BIA

on appeal from the immigration judge’s finding that he had filed

a frivolous asylum application.              Instead, Ndibu argued to the

BIA that he withdrew his asylum application following remand and

voluntarily confessed his false asylum claims, “elect[ing] to

correct prior misrepresentations in the interest of good faith.”

J.A. 28.     Because he confessed and “withdrew” the asylum claim

without     being    coerced    by     the    court,     Ndibu      argued       the

frivolousness bar should not be applied.                This is a different

argument than the one Ndibu raised in the petition for review to

this court.     Failure to make the argument that a frivolousness

                                       19
finding was inappropriate on remand deprives us of jurisdiction

to consider the claim.      See Tiscareno-Garcia v. Holder, 780 F.3d

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

reject this argument as well.

                                      IV.

     In    accordance   with    the    foregoing     discussion,   we   deny

Ndibu’s petition for review.

                                                 PETITION FOR REVIEW DENIED




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