                                                                              FILED
                            NOT FOR PUBLICATION                                JUN 23 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SURINDER KAUR,                                   No. 10-73603

              Petitioner,                        Agency No. A075-615-411

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                       Argued and Submitted June 12, 2015
                            San Francisco, California

Before: HAWKINS and WATFORD, Circuit Judges, and ROTHSTEIN,** Senior
District Judge.

      1. The Board of Immigration Appeals (BIA) did not err in finding petitioner

Surinder Kaur ineligible for immigration benefits because of her previously filed

frivolous asylum application.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
                                                                          Page 2 of 4
      Under 8 U.S.C. § 1158(d)(6), if “an alien has knowingly made a frivolous

application for asylum” and has received appropriate notice, “the alien shall be

permanently ineligible for any benefits” under the Immigration and Nationality Act

(INA). An application is frivolous “if any of its material elements is deliberately

fabricated.” 8 C.F.R. § 1208.20. To provide adequate notice, the Attorney General

must “advise the alien of the privilege of being represented by counsel and of the

consequences . . . of knowingly filing a frivolous application,” and must “provide

the alien a list of persons” who could represent the alien pro bono. 8 U.S.C.

§ 1158(d)(4). To support a finding of frivolousness, the BIA must also “make

specific findings that the applicant knowingly filed a frivolous application; [] those

findings must be supported by a preponderance of the evidence; and [] the

applicant must be given sufficient opportunity to account for any discrepancies or

implausibilities in his application.” Fernandes v. Holder, 619 F.3d 1069, 1076

(9th Cir. 2010) (quoting Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir. 2008)).

      Kaur admits that she made knowingly false representations in her 2003

asylum application. She received adequate notice of the consequences of doing so.

The application stated that frivolous applications could result in permanent

ineligibility for benefits under the INA, and Kaur acknowledged that she had the

right to representation by counsel and had been provided with a list of pro bono
                                                                        Page 3 of 4
attorneys who could represent her. See Cheema v. Holder, 693 F.3d 1045, 1049

(9th Cir. 2012). The BIA affirmed the immigration judge’s finding that Kaur had

knowingly submitted a frivolous application, and that finding was supported by a

preponderance of the evidence.

      Kaur argues that she did not have an adequate opportunity to explain her

reasons for filing a frivolous asylum application. This argument is unavailing,

because Kaur had an opportunity to explain those reasons in a brief submitted to

the immigration judge (IJ). See Kulakchyan v. Holder, 730 F.3d 993, 996 (9th Cir.

2013) (concluding that petitioner’s brief afforded her an adequate opportunity to

explain her misrepresentations). For the same reason, Kaur’s due process

argument also fails.

      2. Kaur argues that the IJ should not have made a frivolousness finding

because Kaur had recanted her false statements before a merits hearing was held,

and because she would have withdrawn her frivolous asylum application even

earlier had she had better counsel. Both arguments fail because “§ 1158(d)(6)

permits a frivolousness finding based on a withdrawn application.” Id. Thus, the

point at which Kaur withdrew her application is irrelevant.

      3. Kaur argues that her misrepresentations are excusable because she feared

removal to India and permanent separation from her kidnapped daughter. This
                                                                           Page 4 of 4
argument fails. Even if there is a “duress” exception to the § 1158(d)(6)

frivolousness bar, Kaur’s fears of removal and familial separation would not rise to

the level necessary to satisfy it. The BIA thus did not err in refusing to consider a

potential duress exception.

      4. Kaur’s argument that her I-601 waiver may excuse her frivolous asylum

application 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.

      PETITION DENIED.
