15-376
Lin v. Sessions
                                                                                    BIA
                                                                             Vomacka, IJ
                                                                            A076 280 193

                       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 TO 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
15th day of March, two thousand seventeen.

PRESENT:
         REENA RAGGI,
         RICHARD C. WESLEY,
         DEBRA ANN LIVINGSTON,
              Circuit Judges.
_____________________________________

JIANG LIN,
         Petitioner,

                  v.                                              15-376
                                                                  NAC
JEFFERSON B. SESSIONS, III, UNITED
STATES ATTORNEY GENERAL,
         Respondent.*
_____________________________________


FOR PETITIONER:                      Chun W. Wong, New York, N.Y.


*
 The Clerk of Court is directed to amend the caption as set forth
above.
FOR RESPONDENT:            Benjamin C. Mizer, Principal Deputy
                           Assistant Attorney General; Holly M.
                           Smith, Senior Litigation Counsel;
                           Edward C. Durant, Attorney, Office
                           of Immigration Litigation, United
                           States   Department   of   Justice,
                           Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Jiang Lin, a native and citizen of the People’s

Republic of China, seeks review of the BIA’s affirmance of an

Immigration Judge’s (“IJ”) denial of asylum based on Lin

knowingly filing a frivolous application.   In re Jiang Lin, No.

A076 280 193 (B.I.A. Jan. 21, 2015), aff’g No. A076 280 193

(Immig. Ct. N.Y.C. Aug. 21, 2013).       We have reviewed the

decisions of both the IJ and BIA “for the sake of completeness,”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006), applying well established standards of review, see

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).   We assume the parties’ familiarity with

the underlying facts and procedural history in this case.

    “A person who makes an application for asylum determined

to be ‘frivolous,’ or deliberately and materially false, is


                               2
subject to a grave penalty: permanent ineligibility for most

forms of relief under the immigration laws.”        Mei Juan Zheng

v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see 8 U.S.C.

§ 1158(d)(6).     “Given   the       serious   consequences   of   a

frivolousness finding, the [governing] regulation provides a

number of procedural safeguards[, including] . . . (1) notice

to the alien of the consequences of filing a frivolous

application; (2) a specific finding by the Immigration Judge

or the Board 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.”       Matter

of Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007) (discussing 8

C.F.R. § 1208.20).

    The record belies Lin’s assertion that the agency failed

to comply with these procedures.        Lin received notice of the

consequences of filing a frivolous application on multiple

occasions, first, orally from the IJ after Lin first expressed

a desire to apply for asylum, and second, in writing on the very

application form Lin filed.          The knowing falsity of Lin’s


                                 3
application is evident from his affidavit, which admits that

his claim was “made up” and that he “knew this” before filing

his application.       C.A.R. 737.       The record also shows that Lin

himself obtained some of the false documents proffered to

support      his    initial   application.         Lin    had   sufficient

opportunity to account for his application’s contents; the

agency merely rejected his explanation and concluded that he

was not deceived into thinking that he was filing a correct

application by his first attorney.

    Lin nevertheless maintains that he lacked the mental

capacity to receive notice because he was a minor under the

influence of an unscrupulous attorney.             Lin cites no authority

supporting the proposition that a minor categorically lacks the

legal capacity to receive notice.              Moreover, the agency’s

finding that Lin knew he was filing a false application and was

aware   of    the    consequences    of    doing   so    is   supported    by

substantial evidence.         See 8 U.S.C. § 1252(b)(4)(B).         Lin was

17 years’ old when he signed the application under oath in court

with the aid of an interpreter.            He was 18 when he proffered

his affidavit.       Nothing in the record suggests that Lin did not

understand the warnings he received or what he was signing.               See

id.; Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002) (“To


                                     4
reverse under the substantial evidence standard, ‘we must find

that the evidence not only supports that conclusion, but compels

it.’” (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

(1992))).

    Lin’s claim that he was denied due process because his

second attorney rendered ineffective assistance by advising him

to admit to fraud instead of simply withdrawing the application

is also meritless.   Setting aside that the attorney’s conduct

was directed at remedying Lin’s fraud, Lin’s due process

challenge fails for lack of prejudice.   See Garcia-Villeda v.

Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming

denial of due process in immigration cases must, in order to

prevail, ‘allege some cognizable prejudice fairly attributable

to the challenged process.’” (quoting Lattab v. Ashcroft, 384

F.3d 8, 20 (1st Cir. 2004))).   “[A] withdrawn application can

serve as the basis for a frivolousness finding,” Mei Juan Zheng

v. Holder, 672 F.3d 178, 180 (2d Cir. 2012), and Lin failed to

show that his fraud would not have been discovered but for his

admission.   As the IJ observed, Lin’s withdrawal of his initial

application and substitution with a factually inconsistent

claim, as well as the fact that his first attorney’s firm had

been raided by authorities in connection with an asylum fraud


                                5
investigation, would have alerted the IJ and the Government that

the contents of Lin’s initial application were false.1

    Lin’s remaining arguments also fail.   An independent Sixth

Amendment right to counsel does not attach in immigration

proceedings.    See Debeatham v. Holder, 602 F.3d 481, 485 (2d

Cir. 2010).    Moreover, his contention regarding the burden of

proof in establishing a frivolousness finding was not presented

to the agency and is thus waived.   See Lin Zhong v. U.S. Dep’t

of Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.

                         FOR THE COURT:
                         Catherine O’Hagan Wolfe, Clerk of Court




1
  Insofar as Lin also challenges his original counsel’s
assistance as ineffective, the claim fails. Lin cannot show
that he was prejudiced by his counsel’s performance, see
Garcia-Villeda v. Mukasey, 531 F.3d at 149, because he knowingly
took part in the fabrication of elements of his initial asylum
petition and because he lacked an otherwise meritorious basis
for seeking asylum.

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