11-4156-ag
Niang v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________________
August Term, 2013
(Argued: November 7, 2013 Decided: August 13, 2014)
Docket No. 11-4156-ag
______________________
GADE NIANG,
Petitioner,
-v.-
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
Respondent.
______________________
Before:
SACK, HALL, LIVINGSTON, Circuit Judges.
______________________
Petitioner seeks review of a decision of the Board of Immigration Appeals affirming an
immigration judge’s denial of his application for adjustment of status based on a finding that
Niang filed a frivolous asylum application. Because the written warning in that application
provided Niang adequate notice of the consequences of filing a frivolous application, he was
ineligible for all relief from removal. Therefore, we conclude that the agency did not err in
denying adjustment of status, and we DENY Niang’s petition.
______________________
H. RAYMOND FASANO, Youman, Madeo & Fasano, LLP, New York, NY, for
Petitioner.
YAMILETH G. DAVILA, Trial Attorney (Stuart F. Delery, Assistant Attorney
General, Civil Division; William C. Peachey, Assistant Director; Ada E. Bosque,
Trial Attorney, on the brief), Office of Immigration Litigation, U.S. Department
of Justice, Washington, D.C., for Respondent.
______________________
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PER CURIAM:
Petitioner Gade Niang, a native and citizen of Senegal, seeks review of a decision of the
Board of Immigration Appeals (“BIA”) affirming an immigration judge’s (“IJ”) denial of his
application for adjustment of status based on a finding that Niang was ineligible for all relief for
having filed a frivolous asylum application. Because Niang received adequate notice of the
consequences of filing a frivolous application through the written warning on the asylum
application, we conclude that the agency did not err in denying his adjustment application, and
we deny the petition for review.
BACKGROUND
Gade Niang, a native and citizen of Senegal, entered the United States in 2002 as a
nonimmigrant visitor. In 2005, Niang applied for asylum, withholding of removal and relief
under the Convention Against Torture, asserting that he was from the Ivory Coast where he had
been persecuted on account of his ethnicity and his political opinion. During a subsequent
interview with an asylum officer, Niang signed a declaration stating that he knew the contents of
his application and attesting to their truth. The asylum officer referred Niang’s application to an
IJ on the suspicion that Niang was not Ivorian, and Niang was placed in removal proceedings.
Niang appeared before an IJ in 2006, and, through counsel, confirmed the truth, accuracy,
and completeness of the contents of his asylum application and contested the Government’s
allegation that he was a native and citizen of Senegal. In light of evidence demonstrating that
Niang was Senegalese, the IJ instructed counsel to inform Niang of the risks of filing a frivolous,
or fraudulent, asylum application. Niang initially proceeded with but later withdrew his
application, admitting he was Senegalese. He then applied for adjustment of status based on an
approved I-130 immigrant visa petition filed on his behalf by his wife, a United States citizen.
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Following a merits hearing, the IJ concluded that Niang was barred from any immigration
benefits because he knowingly filed a frivolous asylum application. The IJ consequently denied
adjustment of status and ordered Niang removed to Senegal. On appeal, Niang argued that he
was not given adequate notice as required by 8 U.S.C. § 1158(d). In a September 2011 decision,
the BIA rejected this argument, pointing out that Niang received both written notice through his
asylum application and oral warnings through his attorney. The BIA further agreed with the IJ
that Niang had knowingly filed a frivolous application and dismissed the appeal. Niang now
petitions this Court for review of the BIA’s decision.
DISCUSSION
We review the agency’s factual findings to determine whether they are supported by
substantial evidence and its conclusions of law de novo. See Yanqin Weng v. Holder, 562 F.3d
510, 513 (2d Cir. 2009). Because the BIA adopted and supplemented the decision of the IJ, we
have reviewed the decision of the IJ as supplemented by the BIA. Yan Chen v. Gonzales, 417
F.3d 268, 271 (2d Cir. 2005).
“A person who makes an application for asylum determined to be ‘frivolous,’ or
deliberately and materially false, is 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) (making an alien who “has knowingly made a frivolous
application for asylum . . . permanently ineligible for any benefits” under the INA). The
frivolous filing bar does not apply, however, if the applicant has not “received the notice under
paragraph (4)(A).” 8 U.S.C. § 1158(d)(6). That paragraph states that “[a]t the time of filing an
application for asylum, the Attorney General shall . . . advise the alien . . . of the consequences,
under paragraph (6), of knowingly filing a frivolous application for asylum.” § 1158(d)(4)(A);
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see also Mei Juan Zheng, 514 F.3d at 180 (noting that applicants are entitled to various
“procedural safeguards” prior to having a finding of frivolousness entered against them); Matter
of Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007) (same). In this case, it is undisputed that Niang
knowingly filed a frivolous asylum application. He argues, however, that he did not receive
adequate notice under § 1158(d)(4)(A) warning him against such filings. We disagree.
Niang first applied for asylum by mailing to an asylum office his signed I-589
application, which contained a written warning 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 [(“INA”)].” Niang may not have received an explicit oral
warning of those consequences from either the asylum officer who interviewed him or the IJ to
whom his application was referred, but the IJ intimated that there were grave consequences and
encouraged Niang’s attorney to make those consequences clear to him, which the attorney agreed
to do
Niang asserts that the INA requires the IJ to provide warnings in addition to the one
found in the I-589 form, an issue we have not previously resolved. “While in general we are
wary of determining significant issues not yet passed upon by the agency, the notice issue here
involves the proper interpretation of a statute under undisputed facts rather than the resolution of
an issue committed in the first instance to agency determination, and may be resolved as a matter
of law.” Ribas v. Mukasey, 545 F.3d 922, 929 (10th Cir. 2008) (internal citation omitted); cf. Shi
Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 313 n.15 (2d Cir. 2007) (en banc) (“We, rather
than the BIA, have primary authority under Chevron to determine whether a particular agency
interpretation is consistent with the unambiguously expressed intent of Congress.”), cert. denied,
553 U.S. 1053 (2008).
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The statute plainly states that at the time an alien files an asylum application, the
Attorney General must advise him that he will be permanently ineligible for immigration
benefits if he knowingly files a frivolous asylum application. Although we understand that IJs
frequently provide a warning of the consequences of filing a frivolous application, nothing in the
INA expressly requires that the warning be given by an IJ. See 8 U.S.C. § 1158(d)(4)(A), (d)(6).
The INA requires only that the applicant “receive[]” notice at the time of filing. § 1158(d)(6);
see id. § 1158(d)(4)(A). We need not decide if any other type of warning would satisfy the
notice requirement because we conclude that the written warning contained in Niang’s asylum
application provided him adequate notice.1
In so ruling we join the Seventh, Ninth, Tenth and Eleventh Circuits. When confronted
with a defective oral warning, the Tenth Circuit held that the provision of an adequate oral
warning was irrelevant because the written warning contained in the asylum application afforded
sufficient notice of the consequences of filing a frivolous application. Ribas, 545 F.3d at 930.
The Seventh, Ninth and Eleventh Circuits have since joined the holding in Ribas. Ruga v. U.S.
Attorney Gen. No. 13-14377, 2014 WL 3031304, at*2-3 (11th Cir. July 2, 2014) (concluding that
the written warning on the I-589 asylum application satisfies § 1158(d)(4)(A), rendering an oral
warning by an IJ unnecessary); Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012) (same);
Pavlov v. Holder, 697 F.3d 616, 618 (7th Cir. 2012) (same).
As the Tenth Circuit noted, the “Attorney General’s regulations permit filing the
application in a variety of different ways,” including by mail or at a hearing before an IJ, but “in
each case the alien is required to complete and sign the asylum application form and to provide it
to the agency.” Ribas, 545 F.3d at 929; see 8 C.F.R. § 208.4(b). The warning on the asylum
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Niang does not assert before this Court that he did not receive or was unable to understand the warning
that appears on the signature page of his asylum application form.
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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. See 8 U.S.C.
§ 1158(d)(4)(A) (requiring that notice be provided at the time of filing). This reading aligns with
the BIA’s holding that “the only action required to trigger the frivolousness inquiry is the filing
of an asylum application.” Matter of X-M-C-, 25 I. & N. Dec. 322, 324 (BIA 2010); see also
Mei Juan Zheng, 672 F.3d at 184 (giving Chevron deference to Matter of X-M-C-).
Because the written warning provided on the asylum application alone is adequate to
satisfy the notice requirement under 8 U.S.C. § 1158(d)(4)(A) and because Niang signed and
filed his asylum application containing that warning, he received adequate notice warning him
against filing a frivolous application. As a consequence of having ignored that warning, Niang
was ineligible for adjustment of status. See id. §§ 1158(d)(4)(A), (d)(6) (barring benefits under
chapter 12 of title 8); id. § 1255 (adjustment provision).
CONCLUSION
The petition for review is DENIED.
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