         12-182
         Zheng v. Holder
                                                                                        BIA
                                                                                   Ferris, IJ
                                                                               A077 293 667
                            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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                     Circuit Judges.
11       ______________________________________
12
13       XIU LAN ZHENG,
14                Petitioner,
15                                                              12-182
16                         v.                                   NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, Youman, Madeo &
24                                     Fasano, LLP, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Ernesto H. Molina,
28                                     Jr., Assistant Director; S. Nicole
29                                     Nardone, Trial Attorney, Office of
 1                          Immigration Litigation, Civil
 2                          Division, United States Department
 3                          of Justice, Washington, D.C.
 4
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED.

10       Petitioner, Xiu Lan Zheng, a native and citizen of the

11   People’s Republic of China, seeks review of a December 15,

12   2011, decision of the BIA affirming the March 17, 2005,

13   decision of Immigration Judge (“IJ”) Noel Ann Ferris, which

14   denied her application for asylum, withholding of removal,

15   and relief under the Convention Against Torture (“CAT”).       In

16   re Xiu Lan Zheng, No. A077 293 667 (B.I.A. Dec. 15, 2011),

17   aff’g No. A077 293 667 (Immig. Ct. N.Y. City Mar. 17, 2005).

18   We assume the parties’ familiarity with the underlying facts

19   and procedural history of the case.

20       Zheng challenges only the agency’s authority to find

21   that her initial asylum application was frivolous.     Under

22   the circumstances of this case, we have reviewed the

23   decision of the IJ as supplemented by the BIA.   See Yan Chen

24   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The

25   applicable standards of review are well-established.     See

                                  2
 1   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

 2   510, 513 (2d Cir. 2009).

 3          Before being barred from future immigration benefits

 4   for filing a frivolous asylum application, aliens are

 5   entitled to a variety of procedural safeguards, including

 6   notice of the consequences of filing a frivolous

 7   application.     See Mei Juan Zheng v. Mukasey, 514 F.3d 176,

 8   180 (2d Cir. 2008); Matter of Y-L-, 24 I. & N. Dec. 151, 155

 9   (BIA 2007).     Specifically, the Immigration and Nationality

10   Act provides that, “[a]t the time of filing an application

11   for asylum, the Attorney General shall . . . advise the

12   alien . . . of the consequences . . . of knowingly filing a

13   frivolous application for asylum.”     8 U.S.C.

14   § 1158(d)(4)(A).

15          Zheng does not challenge the IJ’s finding that her

16   initial, later withdrawn, asylum application was frivolous,

17   that is, materially false.     See Mei Juan Zheng, 514 F.3d at

18   178.    Rather, she argues that the agency erred as she did

19   not receive adequate notice of the consequences of filing

20   such an application because, prior to her initial filing,

21   the IJ never gave her an oral warning regarding those

22   consequences.     However, nothing in the Immigration and

23   Nationality Act requires that the warning be given orally or

                                     3
 1   by an IJ.   See 8 U.S.C. § 1158(d)(4)(A).   The asylum

 2   application Zheng filed and signed and submitted to the IJ

 3   on February 24, 2000 explained that “[a]pplicants determined

 4   to have made a frivolous application for asylum will be

 5   permanently ineligible for any benefits under the

 6   Immigration and Nationality Act.”    Although Zheng now

 7   contends that she did not understand the notice, the record

 8   belies her argument, as she certified in a separate

 9   statement attached to her original application (both in

10   English and in Chinese) that the contents of her application

11   were true and correct and that she had been advised of the

12   consequences of filing a false or frivolous application.

13   Moreover, her attorney confirmed to the IJ at the February

14   24, 2000 hearing that Zheng “had been read the full fraud

15   advisals” and knew that “if anything . . . is found to be

16   untrue, . . . she will be barred for life from receiving any

17   legal status in this country.”    Accordingly, Zheng received

18   sufficient notice.   See Ribas v. Mukasey, 545 F.3d 922, 929-

19   30 (10th Cir. 2008) (concluding, as a matter of law, that

20   the written warning on the form provides sufficient notice

21   of the consequence of filing a frivolous application).

22       Zheng does not argue that the IJ failed to meet any

23   other procedural safeguards associated with making a

24   frivolousness finding.   She did not acknowledge the false

                                   4
 1   statements in her original application until January 2001,

 2   when she submitted an amended application, although she had

 3   several opportunities to recant before that.   On March 17,

 4   2005, the IJ denied relief and ordered Zheng removed, both

 5   on the merits because the IJ found her not to be credible

 6   and because she had filed a frivolous application initially.

 7       Because Zheng received adequate notice of the

 8   consequences of filing a frivolous application, the agency

 9   did not err in finding that she was barred from receiving

10   future immigration benefits for filing a frivolous

11   application.

12       For the foregoing reasons, the petition for review is

13   DENIED.

14                              FOR THE COURT:
15                              Catherine O’Hagan Wolfe, Clerk
16




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