Abaz Jashari v. Jefferson B. Sessions, III

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0050n.06

No. 17-3457

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
ABAZ JASHARI, ) Jan 25, 2018
) DEBORAH S. HUNT, Clerk
Petitioner, )
)
ON PETITION FOR REVIEW
v. )
OF AN ORDER OF THE
)
BOARD OF IMMIGRATION
JEFFERSON B. SESSIONS, III, Attorney General, )
APPEALS
)
Respondent. )
)

BEFORE: ROGERS, McKEAGUE, and WHITE, Circuit Judges.

WHITE, Circuit Judge. Petitioner Abaz Jashari seeks review of a final order of removal

issued by the Board of Immigration Appeals. Jashari argues that the Board erred (1) by failing to

treat Jashari’s false testimony as “timely retracted,” (2) by finding that Jashari had filed a

frivolous application for asylum, (3) by finding that Jashari had withdrawn his application for

withholding of removal, (4) by denying Jashari’s motion to reopen the removal proceedings

based on the allegedly ineffective assistance of counsel, and (5) by failing to remand to the

Immigration Judge to address allegedly changed circumstances stemming from Jashari’s

conversion to Christianity. For the reasons that follow, we affirm.

I. Background

Abaz Jashari was born in Kosovo on April 8, 1973. Jashari is a citizen of the former

Yugoslavia, and further identified as a Muslim Albanian Kosovar. Jashari entered the United
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Jashari v. Sessions

States at an unknown place and time and has provided conflicting information concerning the

date, place, and manner of his entry. Jashari’s wife and three children have U.S. citizenship.

On January 11, 2008, Jashari filed a Form I-589 “Application for Asylum and for

Withholding of Removal” with U.S. Citizenship and Immigration Services (USCIS). Form I-589

is the vehicle by which immigrants can request three different kinds of relief: asylum,

withholding of removal, and protection pursuant to the U.N. Convention Against Torture (CAT).

Jashari requested all three forms of relief. At this time, Jashari was represented by attorney

Svetlana Schreiber.

Prior to filing his I-589, Jashari received a letter informing him of the “consequences of

knowingly filing a frivolous application for asylum in the United States.” (R. 530.) The letter

noted that if Jashari “knowingly file[d] a frivolous application for asylum, [he] WILL BE

BARRED FOREVER from receiving any benefits under the Immigration and Nationality Act.”

(Id. (emphasis in original).) The letter defined a “frivolous” application as “one which contains

statements or responses to questions that are deliberately fabricated.” (Id.)

Jashari was interviewed by an asylum officer on May 20, 2008, with the assistance of an

Albanian interpreter and signed a document making the following declarations:

I understand that, under the laws of the United States, if I sign or submit a
statement or document I know is false or has no reasonable basis in fact that
pertains to a material fact in any application, affidavit, or other document required
by the immigration laws or regulations, I may be fined or imprisoned not more
than five years.

I also understand that if I filed my asylum application on or after April 1, 1997,
I may be forever barred from receiving any benefits under the Immigration and
Nationality Act if I knowingly made a frivolous application for asylum.
A frivolous application for asylum is an application that contains deliberately
fabricated statements.

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I do solemnly swear/affirm to tell the truth, the whole truth, and nothing but the
truth during my interview.

(R. 524.)

On October 28, 2010, the asylum officer denied Jashari’s application and referred the

case to an Immigration Judge, concluding that Jashari had “failed to demonstrate by clear and

convincing evidence that the application was filed within one year after [his] last arrival” in the

United States. (R. 525.) The asylum officer noted that Jashari “testified that he arrived at a land

border crossing at an unknown point in what he believes was Texas on February 15, 2007” but

was “unable to substantiate that claim with any sort of evidence in the form of travel or lodging

receipts or any other type of documentary evidence.” (Id.) The officer also noted that Jashari’s

“testimony, country conditions, and applicable U.S. laws or policies do not indicate the presence

of any changed circumstances that materially affect [his] asylum eligibility.” (Id.)

At some point between the denial of Jashari’s asylum application and his appearance

before an Immigration Judge for removal proceedings, Jashari’s wife filed a Form I-130 petition

to adjust status on his behalf. As part of that petition, Jashari submitted a signed Form G-325A

with certain biographic information about himself, including dates and places of residence in the

U.S.

On January 15, 2015, Jashari appeared for removal proceedings before Immigration

Judge Alison Brown (IJ), represented by Adem Vllasi, a new attorney whom Jashari appears to

have retained after being dissatisfied with his prior counsel. At the hearing, Jashari withdrew his

pending application. Before allowing him to do so, the IJ informed Jashari that the application

was “the only form of relief he’s filed with this court in terms of defense against being removed”

and that any withdrawal would be with prejudice, “meaning you can’t go back to that

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application.” (R. 130–31.) The IJ stressed that the application sought to be withdrawn was

Jashari’s “only application for relief” and was the “only defense against being deported I have in

your file.” (R. 131–32.) Jashari acknowledged that he understood and still wanted to withdraw

the application.

The IJ then addressed Jashari’s counsel and noted that she was “not clear . . . what

[Jashari] is requesting at this point.” (R. 132.) Jashari’s counsel responded that there “are two

alternative forms of relief here available.” (Id.) According to counsel, the first of those

alternatives was “the fee in for the 485,” presumably a reference to Form I-485, the vehicle by

which a spouse of a U.S. citizen may apply for lawful permanent residency. (Id.) The second

alternative, according to counsel, was to request “a continuance because the respondent is

eligible under DAPA”—Deferred Action for Parents of Americans and Lawful Permanent

Residents, an executive action deferring removal of qualified immigrants—on the basis of

Jashari’s children with U.S. citizenship. (Id.) Jashari’s counsel then requested a continuance,

but the IJ denied that request.

The court then allowed Jashari to testify in opposition to his removal, which was the

original purpose of the hearing. Contrary to the information contained on his I-589, Jashari

testified that he entered the United States on either September 15 or 16, 2006, apparently

accompanied by his wife. Jashari testified that he arrived by airplane in New York and was

using a “travel document” in the name of “Burim Pilana,” a person with refugee status that

Jashari had met in Kosovo. (R. 141.) All of the information on the travel document belonged to

Burim Pilana, but the document bore Jashari’s picture. Jashari testified that he was briefly

questioned by immigration and then received a Form I-94, which is a standard

“Arrival/Departure Record.” Jashari testified that he destroyed the I-94 and Burim Pilana’s

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travel documents after entering the country, explaining that he “was a little scared to keep the

documents that did not belong to me.” (R. 143.)

The DHS attorney then cross-examined Jashari, beginning by asking whether he wanted

to retract any of his answers. When Jasahari responded that he did not wish to retract any of his

testimony, the DHS attorney questioned Jashari about the inconsistency between his testimony

and the date of entry provided in connection with his I-589 application. When asked why he

gave false information to the asylum officer, Jashari said that he “did not speak the language,”

but also conceded that he had access to an Albanian interpreter at all relevant times. (R. 154–

56.) Jashari then testified that Svetlana Schreiber, his attorney, told him to lie about his date of

entry “because you cannot stay longer than one year without documents in the United States,”

apparently in recognition of the requirement that an asylum applicant file his application within

one year of entry. (R. 169.) The IJ asked whether Jashari’s wife “knew how and when [he]

entered the United States.” (Id.) Jashari responded that his wife knew the details of his entry

“because I have discussed with her when I came here” and that he met his wife in the United

States two days after arriving, apparently contradicting his earlier testimony that he and his wife

arrived together. (R. 169–71.) The IJ then asked why Jashari’s wife was not at the hearing to

testify on his behalf, and Jashari responded that his wife had to care for their daughter.

The DHS attorney questioned Jashari about the Form G-325A submitted in connection

with the petition filed by Jashari’s wife. In relevant part, the Form G-325A indicated that Jashari

had lived at an address in Ohio from June 2006 until April 2011, which was inconsistent both

with his testimony that he arrived in September 2006 and with his initial statement that he had

arrived in February 2007. Jashari was unable to provide a coherent explanation for this

discrepancy, responding only that he could not “recall the dates.” (R. 161.)

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At the close of the hearing, the government asked the court to find that Jashari had filed a

frivolous asylum application. Jashari’s attorney requested an additional hearing at which

Jashari’s wife could testify regarding “his time and manner of entry.” (R. 173.) The IJ denied

the request to allow Jashari’s wife to testify, noting that the hearing had “been set for three years,

so I’m not continuing it to put on further evidence on time, place and manner of entry.”

(R. 174.) The IJ also noted that “time and manner of entry becomes immaterial if he’s ineligible

to adjust because he’s filed a frivolous asylum application.” (R. 173.) On February 12, 2015,

the IJ issued a written Order and Memorandum finding both that Jashari was removable and that

he had filed a frivolous asylum application.

With respect to the finding of removability, the IJ first set out the applicable law, noting

that DHS had charged Jashari with removability and that to rebut such a charge, Jashari “has the

burden of proving, ‘by clear and convincing evidence, that [he] is lawfully present in the United

States pursuant to a prior admission.’” (R. 623 (quoting INA § 240(c)(2)(B)) (alterations in

original)). The IJ further noted that “the terms ‘admitted’ and ‘admission’ . . . denote procedural

regularity . . . rather than compliance with substantive legal requirements.” (Id. (quoting Matter

of Quilantan, 25 I&N Dec. 285, 290 (BIA 2010).) The relevant question was thus whether

Jashari had been subject to “procedural regularity” when he entered the United States; if the IJ

believed Jashari’s testimony that he had entered with false documents, this requirement would

have been satisfied.

However, the IJ found that Jashari’s “testimony was not credible” because he “testified in

a manner that was inconsistent with his previously filed I-589 and statements he made under oath

at his asylum interview” relating “to the time, place and manner of his entry into the United

States.” (R. 624.) The IJ further noted that Jashari “acknowledged that he lied both on his I-589

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and at his asylum interview” and, by way of explanation for those lies, stated that “he was

instructed to do so by his prior attorney.” (Id.) The IJ “found this explanation unpersuasive as

[Jashari] is an adult who should understand the importance of telling the truth.” (Id.) The IJ

concluded that the “fact that [Jashari] would knowingly lie to government officials completely

undermines [his] credibility” and Jashari’s “testimony is therefore given no weight.” (Id.) The

IJ also noted that, “[d]espite having over three years to prepare” for the hearing and knowing that

he bore the burden of proving the time, place, and manner of his entry to the United States,

Jashari “submitted no corroboration of his claim.” (Id.) The IJ thus found that Jashari was

removable. (R. 625.)

The IJ next considered whether Jashari had filed a frivolous asylum application, noting

that “a number of procedural safeguards have been established before an immigration judge can

make a frivolous determination.” (Id. (citing Matter of Y-L, 24 I&N Dec. 151, 155 (BIA 2007)).)

The IJ further noted that “the burden of proof is ultimately on DHS to establish by a

preponderance of the evidence that the application was frivolous and any plausible explanation

offered by the asylum applicant must be taken into account.” (Id. (citing Matter of Y-L, 24 I&N

Dec. at 157).) The IJ found that all of these requirements were satisfied because Jashari had lied

about his date of entry after being duly warned about the consequences and was therefore

“ineligible for any benefit under the INA.” (R. 625–26.)

On July 28, 2015, Vllasi submitted a motion to withdraw as Jashari’s attorney, indicating

that Jashari had re-hired Svetlana Schreiber, his prior counsel. Vllasi’s assertion that Jashari had

re-hired Schreiber appears to be based on the fact that Vllasi had received a request from her

office for transmittal of Jashari’s files. It is unclear whether Jashari was, in fact, represented by

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Schreiber at this time; as of August 4, 2015, Jashari was represented by Jennifer Peyton, a new

attorney.

On February 1, 2016, Jashari filed a motion to reopen the removal proceedings, arguing

that Vllasi’s representation constituted ineffective assistance of counsel. Jashari alleged that

Vllasi’s representation was deficient in five ways. In its entirety, the portion of Jashari’s motion

describing the allegedly ineffective assistance reads as follows:

1. Failed to properly advise Respondent as to the consequences of withdrawing
an application for asylum;

2. Failed to submit evidence to the Court in accordance with the Court’s
individual order, or with the Immigration Court Practice Manual;

3. Advised Respondent to blame prior Counsel regarding Respondent’s use of a
fictitious entrance date;

4. Knowing that respondent’s wife traveled with Respondent during their mutual
September 2006 entrance, advised Respondent not to bring his wife to testify
as a witness at the individual hearing; and

5. Failed to clearly articulate or argue the doctrine of timely retraction as a
defense to the fictitious entrance date during the January 2015 individual
hearing. See generally Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014).

(R. 598.)

Jashari’s motion to reopen was accompanied by a complaint filed by Jashari with the

Columbus Bar Association and a sworn statement by Jashari describing his relationship with

Vllasi.1 Just as in the hearing before the IJ, Jashari admitted that he had lied on his asylum

application. Contrary to his earlier testimony, however, Jashari now stated that the lie was his

idea and that “neither Svetlana or [sic] anyone from her office told” him to lie. (R. 418.) Rather,

Jashari stated that Vllasi “told me to lie, and say that Svetlana told me to make a bad date. He

1
The Columbus Bar Association was “unable to find that an ethical violation occurred”
and terminated the complaint. (See R. 442–443.)

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also told me not to bring my wife Sanjie to Court to talk about when and how I came to this

Country.” (Id.)

On February 18, 2016, the IJ denied Jashari’s motion to reopen in a written Memorandum

and Order. The IJ noted that, in order to “prevail on an ineffective assistance of counsel claim,

the Respondent must comply with the specific procedural requirements set for in Matter of

Lozada[, 19 I&N Dec. 637 (BIA 1988),] and demonstrate that his former counsel’s actions or

inactions prejudiced him.” (R. 584.) The IJ found that Jashari had complied with the applicable

procedural requirements, but denied the motion to reopen based on her finding that Jashari had

filed a frivolous application, which constituted “a bar to adjustment of status, therefore any

action or inaction by prior counsel did not prejudice” Jashari. (Id.)

At removal proceedings before the IJ on April 12, 2016, Jashari next argued that he had

not withdrawn his application for withholding of removal via Form I-589; rather, Jashari argued

that he had only withdrawn his application for asylum. In the alternative, Jashari argued that his

withdrawal of the full I-589 application was the result of the ineffective assistance of Vllasi.

At these proceedings, Jashari submitted documentary evidence including a copy of his Kosovar

passport, a letter indicating that he had converted to Christianity from Islam, and copies of the

U.S. State Department’s “International Religious Freedom Report for 2013” concerning Kosovo

and “Human Rights Report” for Kosovo and Serbia. Jashari articulated no argument based upon

these documents at this time but, as discussed below, later argued that these documents were

evidence of “changed circumstances” that warranted reopening his removal proceedings.

In a written Memorandum and Order dated April 15, 2016, the IJ found that Jashari

“knowingly withdrew his I-589 which was his application for both asylum and withholding of

removal.” (R. 98.) The IJ continued, stating:

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While the Court used the word asylum instead of the form number, the Court
made it clear to the Respondent that by withdrawing that application, he had no
application or no form of relief pending. Therefore the Respondent has no basis
to now assert he believed he still had an application for withholding of removal
pending at the time of his January 15, 2015 hearing.

(Id.) The IJ rejected the alternative argument that the withdrawal was the result of ineffective

assistance, noting that even had counsel failed to inform Jashari of the consequences of

withdrawal, the court “made it clear to Respondent that by withdrawing his asylum application

that left no applications pending.” (Id.) The IJ then reiterated her earlier findings that Jashari

was removable and had filed a frivolous asylum application. (R. 98–99.)

On August 4, 2016, Jashari appealed the IJ’s decision to the Board of Immigration

Appeals (BIA). For the purposes of that appeal, Jashari was represented by Aleksandar Cuic, his

fourth attorney. Jashari advanced four arguments on appeal. First, he argued that the IJ’s

determination that he had filed a frivolous asylum application was erroneous because the false

date of entry was not material to the asylum claim. Second, Jashari argued that the IJ erred by

denying the motion to reopen based on allegedly ineffective assistance of counsel. Third, Jashari

argued that the IJ erred in finding that he had withdrawn his I-589 application in its entirety.

And, fourth, Jashari argued that his recent conversion from Islam to Christianity constituted

changed circumstances and that the IJ erred by not granting Jashari a new hearing on that

ground.

In a written decision dated April 3, 2017, the BIA rejected all of Jashari’s arguments and

denied his appeal. The BIA first affirmed the IJ’s finding that Jashari had filed a frivolous

asylum application but did not specifically address Jashari’s argument that the false date of entry

was immaterial. With respect to the allegedly ineffective assistance of counsel, the BIA found

that the IJ had “properly determined that any action or inaction by the respondent’s prior counsel

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did not prejudice the respondent” because he had “filed a frivolous asylum application.” (R. 5.)

The BIA also found that Jashari had withdrawn his full I-589 application, noting that the IJ had

“warned the respondent that the application that he was seeking to withdraw was ‘the only

application for relief’ that he had before her and the respondent replied that he was aware that he

would not have any other applications before the Immigration Judge if the Immigration Judge

were to allow the withdrawal.” (Id.) With respect to Jashari’s argument “that the Immigration

Judge erred in failing to schedule a new asylum, withholding of removal, and CAT hearing in

light of changed circumstances,” the Board noted that, beyond Jashari’s “brief assertion . . . that

he had converted to Christianity . . . there is no evidence in the record to support [his] claim of

changed circumstances” or that he “will be harmed in his country based on his alleged

conversion.” (Id.) The Board also noted that, despite having several opportunities to do so,

Jashari “never argued before the court that circumstances had changed . . . or articulated the need

to have a merits hearing based on changed circumstances.” (Id.) The Board thus dismissed

Jashari’s appeal in its entirety.

II. Discussion

On May 2, 2017, Jashari filed the instant petition for review of the BIA’s decision.

Jashari is now represented by Altin Nanaj, his fifth attorney. Jashari asks the court to vacate the

BIA’s decision and remand for further proceedings. For the reasons that follow, Jashari’s

arguments are meritless and we affirm the BIA’s decision in full.

A. Jurisdiction

Pursuant to 8 U.S.C. § 1252, this court has jurisdiction to review a final order of removal.

However, to the extent that a petitioner “has failed to exhaust his administrative remedies with

respect to certain claims, this court does not have jurisdiction to address those claims.” Ramani

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v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004). That is, this court does not have jurisdiction to

consider claims that were not properly presented to the BIA. See, e.g., Harmon v. Holder,

758 F.3d 728, 737 (6th Cir. 2014) (finding that a claim was unexhausted where the “only

mention” of the claim before the BIA “was a generic request on the final page” of the brief); Lin

v. Holder, 565 F.3d 971, 978 (6th Cir. 2009) (“[T]hese claims have not been administratively

exhausted because Lin did not present them in his brief for his BIA appeal.”).

B. Standard of Review

“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,

rather than summarily affirming the IJ’s decision, we review the BIA’s decision as the final

agency determination.” Fisenko v. Lynch, 826 F.3d 287, 290 (6th Cir. 2016) (quoting Khalili v.

Holder, 557 F.3d 429, 435 (6th Cir. 2009) (internal alteration omitted)). Where, as here, “the

Board affirms the IJ’s ruling but adds its own comments, we review both the IJ’s decision and

the Board’s additional remarks.” Yousif v. Lynch, 796 F.3d 622, 628 (6th Cir. 2015) (quoting

Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009)).

A petition for review of an order of removal shall be decided “only on the administrative

record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). The BIA’s factual

findings—including a determination that an asylum application was frivolous—are subject to

“the highly deferential substantial-evidence standard,” under which “we will not reverse a factual

determination . . . unless we find that the evidence not only supports a contrary conclusion, but

compels it.” Dieng v. Holder, 698 F.3d 866, 871 (6th Cir. 2012) (quoting Ceraj v. Mukasey,

511 F.3d 583, 588 (6th Cir. 2007)); see also 8 U.S.C. § 1252(b)(4)(B). Thus, although we “must

take into account contradictory evidence in the record[,] ‘the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative agency’s finding

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from being supported by substantial evidence.’” Am. Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490, 523 (1981) (quoting Consolo v. FMC, 383 U.S. 607, 620 (1966)).

C. Jashari’s Arguments on Appeal

Jashari advances five separate arguments on appeal. For the reasons set out below, each

of these arguments is unpersuasive.

1. The “Doctrine of Retraction” Does Not Preclude a Finding that Jashari
Filed a Frivolous Application for Asylum

A substantial portion of Jashari’s brief on appeal is devoted to the argument that the

“doctrine of retraction” precludes a finding that he filed a frivolous application. (See Pet. Br. at

16–21.) Jashari briefly touched on the notion of “timely retraction” in his motion to reopen his

removal proceedings when he argued that Vllasi was ineffective for failing to “argue the doctrine

of retraction as a defense to the fictitious entry date,” (see R. 598), and mentioned this concept

again in his BIA appeal in connection with his position that the IJ erred in denying that motion to

reopen, (see R. 29) but never raised this argument before the BIA as an independent ground on

which to reverse the IJ’s findings. Although the BIA affirmed the IJ’s decision to deny Jashari’s

motion to reopen, it did not discuss the “doctrine of retraction.”

This court lacks jurisdiction over Jashari’s independent “timely retraction” argument

because that claim was neither presented to nor considered by the BIA except in relation to

Jashari’s claim for ineffective assistance of counsel. Jashari has therefore not exhausted his

administrative remedies and this court lacks jurisdiction. See Harmon, 758 F.3d at 737. Even

assuming that the court has jurisdiction over this claim, however, Jashari’s argument is

unpersuasive for the reasons that follow.

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a. Applicable Law

Jashari relies on Ruiz-Del-Cid v. Holder, 765 F.3d 635 (6th Cir. 2014), for the

proposition that the Sixth Circuit has recognized a “timely retraction” defense to findings that an

applicant submitted a frivolous asylum application. Although the false statements at issue in

Ruiz-Del-Cid had been made in connection with an asylum application, the issue before the court

was not whether those statements rendered the application frivolous. Rather, the Ruiz-Del-Cid

court considered whether the petitioner had committed perjury so as to preclude a finding of

“good moral character” pursuant to 8 U.S.C. § 1229b(b)(1)(B), a statute not at issue here. See

Ruiz-Del-Cid, 765 F.3d at 641.

Ruiz-Del-Cid described the “doctrine of retraction” as follows: “Where an alien in an

immigration proceeding testifies falsely under oath as to a material fact but voluntarily and

without prior exposure of his false testimony comes forward and corrects his testimony, perjury

has not been committed and the charge based thereon is not sustained.” Ruiz-Del-Cid, 765 F.3d

at 638–39 (emphasis added) (quoting Matter of M-, 9 I. & N. Dec. 118, 119 (BIA 1960) (internal

alteration omitted)). That is, Ruiz-Del-Cid concerned the impact of timely retraction on charges

of perjury and did not consider whether timely retraction might preclude a finding that an

application was frivolous. The Ruiz-Del-Cid court made clear that its discussion focused on a

particular context: whether an applicant who lied under oath can still be found to have “good

moral character,” as defined by § 1229b(b)(1)(B), if he timely retracts his false statement. See,

e.g., id. at 641 (“To recap: the issue . . . is the statutory requirement that an applicant must be a

person of ‘good moral character’ to merit cancellation of removal[.]”); (“[A]pplicants who gave

false testimony but corrected their testimony voluntarily and prior to exposure or threat of

imminent exposure may still be persons of good moral character.”); (noting that the standard

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described by the court “rightly places the IJ’s and BIA’s focus on the statutory requirement of

good moral character”).

b. Discussion

Jashari’s argument relies entirely on Ruiz-Del-Cid; he cites no other cases and does not

recognize that Ruiz-Del-Cid concerned an altogether different context. Instead, Jashari

incorrectly concludes that “Ruiz is on point in this case.” (Pet. Br. at 20.) Contrary to Jashari’s

conclusion, it is well established that “[r]etraction of a materially false application does not

necessarily change the fact that a materially false application was ‘made.’” Yousif, 796 F.3d at

634 n. 4 (citing Lazar v. Gonzales, 500 F.3d 469, 478 (6th Cir. 2007)); see also Matter of X-M-

C-, 25 I. & N. Dec. 322, 326 (BIA 2010)) (“withdrawal of an asylum application after the

required warnings and safeguards have been provided does not preclude” a finding that the

asylum application was frivolous). Thus, to the extent that Jashari argues that “the formal

withdrawal of his application for asylum should prevent” a frivolous finding, “this contention is

plainly wrong.” Alexandrov v. Holder, 475 F. App’x 41, 47 (6th Cir. 2012) (internal quotations

omitted); see also Lazar, 500 F.3d at 478 (“[W]ithdrawal of [an] asylum application d[oes] not

obviate the need for the IJ to determine whether his false application should be deemed

frivolous.”).

Jashari presents no support for the proposition that timely retraction of false statements

precludes a finding that a respondent filed a frivolous application for asylum, and his position is

contradicted by established case law. See Lazar, 500 F.3d at 478. We therefore reject Jashari’s

argument that the “doctrine of retraction” warrants vacatur of the BIA’s decision.

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2. The BIA and IJ Properly Found that Jashari Had Filed a Frivolous
Application for Asylum

Jashari next argues that the BIA and the IJ erred in determining that he had filed a

frivolous asylum application because neither “made a ‘materiality’ finding in their decision

pertaining to Petitioner’s false testimony before the asylum court.” (Pet. Br. at 23.) Jashari

rightly notes that “courts are required to make a finding that ‘there is sufficient evidence on the

record supporting a finding that a material element of the asylum application was deliberately

fabricated,’” but then incorrectly concludes that this requirement was not satisfied. (See id. at

23.)

It is unclear whether Jashari argues merely that the BIA and IJ failed to articulate a

materiality finding or whether he intends to argue that the record is insufficient to support such a

finding. Whatever Jashari’s intention, however, his argument is unpersuasive: both the BIA and

the IJ found that Jashari had submitted false testimony with respect to a material element of his

asylum application, and that finding is supported by substantial evidence. See Dieng v. Holder,

698 F.3d 866, 871 (6th Cir. 2012); 8 U.S.C. § 1252(b)(4)(B).

a. Applicable Law

“If the Attorney General determines that an alien has knowingly made a frivolous

application for asylum and the alien has received the notice [of the consequences of filing a

frivolous asylum application], the alien shall be permanently ineligible for any benefits under

this chapter.” 8 U.S.C. § 1158(d)(6). An application for asylum is “frivolous” for these purposes

“if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20; see also,

500 F.3d at 475. That is, “frivolousness” requires a finding of “deliberate fraud, not mere

triviality or legal insufficiency.” Yousif, 796 F.3d at 627 (citing Matter of Y–L–, 24 I. & N. Dec.

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151, 155 n. 1 (BIA 2007)). Instead, the falsehood must be “material” to the application in order

to support a finding of frivolousness. See 8 C.F.R. § 1208.20.

As the Sixth Circuit has recognized, a finding of frivolousness “is the veritable ‘death

sentence’ of immigration proceedings.” Yousif, 796 F.3d at 627 (quoting Alexandrov v.

Gonzales, 442 F.3d 395, 398 n. 1 (6th Cir. 2006)). An IJ may therefore make a finding of

frivolousness “only after complying with several procedural safeguards.” Id. (quoting

Alexandrov, 442 F.3d at 398). In particular, a finding of frivolousness requires:

(1) notice to the alien of the consequences of filing a frivolous application, (2) a
specific finding by the IJ 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.

Id. at 628 (quoting Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007)); see also 8 C.F.R.

§ 1208.20.

The BIA has held that a falsified date of entry is material to an asylum application, at

least in situations where, as here, the application is filed more than a year after the real entry date

but less than a year after the falsified date. See, e.g., Matter of M-S-B-, 26 I. & N. Dec. 872, 876

(BIA 2016). In such a situation, the date of entry is material because it is dispositive of the

petitioner’s eligibility for relief, given “the general requirement that [an asylum applicant] file

the application within 1 year of the date of arrival in the United States.” Id. at 876 (citing

8 U.S.C. § 1158; 8 C.F.R. § 1208.4(a)(2)).

b. Discussion

There was no error. Both the IJ and the BIA found that Jashari received notice of the

consequences of filing a frivolous application, and Jashari does not contest this finding. (See R.

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625 (Jashari “was given notice of the consequences of filing a frivolous asylum application”);

R. 4 (Jashari “was provided with the required warnings and safeguards”).) Neither does Jashari

contest the IJ’s and the BIA’s findings that he knowingly filed a frivolous application. (See R.

625–26; R. 4.) And, Jashari does not challenge the IJ’s and BIA’s finding that he had the

opportunity to account for any discrepancies but could not do so. (See R. 626; R. 4.)

Jashari does, however, challenge the finding that he had deliberately fabricated a material

element of his application. Contrary to his position, both the IJ and the BIA made specific

materiality findings that were adequately supported by the record. (See R. 626 (Jashari provided

the false date “in order to establish he filed his asylum application within one year of his entry,

thus making the false information material”); R.4 (Jashari “admitted . . . that he provided a false

arrival date on his asylum application and . . . during his asylum interview in order to establish

his eligibility to seek asylum”); R. 169 (Jashari testified that he lied about his date of entry

“because you cannot stay longer than one year without documents in the United States,”

admitting that his lie was intended to establish his eligibility for asylum).)

All the prerequisites to a finding that Jashari had filed a frivolous application were

satisfied. See 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary[.]”). Jashari’s

argument to the contrary is unpersuasive.

3. The BIA and IJ Did Not Err in Denying Jashari’s Motion to Reopen

Jashari next argues that the “BIA erred in upholding IJ’s denial of Petitioner’s motion to

reopen IJ’s prior removability and frivolous asylum findings, because prior counsel’s ineffective

assistance prejudiced the outcome of Petitioner’s case.” (Pet. Br. at 24.)

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a. Applicable Law

The decision whether to grant a motion to reopen is discretionary and, therefore, is

ordinarily reviewed for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323 (1992).

However, where a motion to reopen involves the legal aspects of claims of ineffective assistance

of counsel “we review this question of law de novo.” Allabani v. Gonzales, 402 F.3d 668, 676

(6th Cir. 2005) (citing INS v. Doherty, 502 U.S. 314 (1994); Gjonaj v. INS, 47 F.3d 824, 826 (6th

Cir. 1995)).

Motions to reopen removal proceedings premised on claims of ineffective assistance of

counsel must satisfy both procedural and substantive requirements. See, e.g., Sako v. Gonzales,

434 F.3d 857, 863 (6th Cir. 2006); Lyagoba v. Holder, 393 F. App’x 357, 360 (6th Cir. 2010).

First, a claim of ineffective assistance of counsel must comply with the procedural requirements

set out in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Those requirements are “(1) that

the motion be supported by an affidavit detailing counsel’s failings, (2) that counsel be informed

of the allegations, and (3) that the motion show that disciplinary charges have been filed with the

appropriate authority.” Sako, 434 F.3d at 863 (citing Matter of Lozada, 19 I. & N. Dec. at 639;

Ljucovic v. Gonzales, 144 F. App’x 500, 502 (6th Cir. 2005)). Both the IJ and BIA found that

Jashari satisfied the Lozada requirements, and all parties agree that that they were satisfied.

After satisfying the Lozada requirements, a petitioner must then “establish that, but for

the ineffective assistance of counsel, he would have been entitled to continue residing in the

United States.” Id. at 863. Put another way, Jashari “carries the burden of establishing that

ineffective assistance of counsel prejudiced him or denied him fundamental fairness in order to

prove that he has suffered a denial of due process.” Id. (quoting Huicochea–Gomez v. INS,

237 F.3d 696, 699 (6th Cir. 2001)). The prejudice inquiry turns on an ex post determination

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“whether the alien’s claims could have supported a different outcome,” and the “fundamental

fairness” inquiry “examines the process afforded ex ante, considering whether the denial of

effective counsel makes such a proceeding fundamentally unfair.” Id. at 864.

b. Discussion

Jashari cannot prevail on his claim because he cannot show prejudice or a denial of

fundamental fairness. Jashari argues only that his representation by Vllasi was ineffective; he

makes no claims regarding the representation provided by any of his other attorneys. The entire

relevant portion of Jashari’s brief on appeal reads as follows:

[Jashari] demonstrated through his motion [to reopen] that but for his prior
counsel’s failure to properly advise him on the consequences of withdrawing his
application for asylum; failure to submit evidence to the court; wrongful [advice]
to blame prior counsel for the use of the false entry date; wrongful [advice] not to
bring his wife in court to testify; and, failure to articulate the Doctrine of
Retraction as a defense to the incorrect date of entry, he would have been able to
establish entry into the US, and would not have received a frivolous asylum
finding.

(Pet. Br. at 25.)

The IJ denied Jashari’s motion to reopen—and the BIA affirmed—based on the finding

that Jashari had filed a frivolous asylum application and was therefore ineligible for any

immigration benefits. That was correct: unless Jashari can demonstrate that Vllasi’s allegedly

ineffective assistance either caused the frivolous finding in the first instance or resulted in the

IJ’s or BIA’s decision not to set that finding aside, Jashari’s claim fails. Thus, to the extent that

Jashari claims that ineffective assistance of counsel resulted in the removability finding, the

claims fail in light of the finding that Jashari filed a frivolous application. The only potentially

relevant claims are therefore those that touch on the frivolous finding: the claim that Vllasi

advised Jashari “to blame prior counsel for the use of the false entry date” and the claim that

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Vllasi failed “to articulate the Doctrine of Retraction as a defense to the incorrect date of entry.”

(Pet. Br. at 25.)

First, even assuming that Vllasi instructed Jashari to lie about what his former counsel

had told him to do, that instruction neither prejudiced Jashari nor deprived him of fundamental

fairness. None of the criteria for a frivolous finding turns on whether Jashari’s prior counsel told

him to fabricate the date of entry and, as discussed above, all of the factors are satisfied here.

Thus, even assuming that Vllasi instructed Jashari to say that his prior counsel told him to lie,

that advice neither prejudiced Jashari nor deprived him of fundamental fairness.

Second, Vllasi’s failure “to articulate the Doctrine of Retraction as a defense to the

incorrect date of entry” neither prejudiced Jashari nor deprived him of fundamental fairness. As

discussed above, timely retraction does not preclude a finding that an immigrant filed a frivolous

asylum application.

Because the allegedly ineffective assistance of counsel did not result in the finding that

Jashari had filed a frivolous application, Jashari’s argument fails. Neither the IJ nor the BIA

erred in denying Jashari’s motion to reopen his removal proceedings.

4. Jashari Voluntarily Withdrew His Entire I-589 Application

Jashari next argues that the “BIA violated [his] due process right by arbitrarily depriving

him from [sic] applying for withholding of removal as a form of relief.” (Pet. Br. at 26.) This

argument is premised on Jashari’s assertion that when he withdrew his application for asylum

pursuant to Form I-589, he did not intend also to withdraw his application for withholding of

removal. This claim is without merit.

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a. Applicable Law

In order to demonstrate a due process violation, Jashari must “demonstrate that (1) there

was a defect in the removal proceeding; and (2) the defect was prejudicial.” Debek v. Holder,

380 F. App’x 492, 497 (6th Cir. 2010) (citing Ndrecaj v. Mukasey, 522 F.3d 667, 673 (6th Cir.

2008)). “A due process violation occurs only when ‘the proceeding was so fundamentally unfair

that the alien was prevented from reasonably presenting his case.’” Lin, 565 F.3d at 979

(quoting Hassan v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005)). In order to prevail on a due

process challenge, a petitioner must therefore show that “the alleged violation affected the

outcome of the proceeding.” Id. (citing Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005));

see also Warner v. Ashcroft, 381 F.3d 534, 539 (6th Cir. 2004) (“[P]roof of prejudice is

necessary to establish a due process violation in an immigration hearing.”).

“We review de novo alleged due process violations in immigration proceedings.” Garza-

Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007) (citing Mikhailevitch v. INS, 146 F.3d

384, 391 (6th Cir. 1998)).

b. Discussion

First, there was no “defect” in the removal proceeding because the IJ correctly found that

Jashari had withdrawn his entire I-589 application. When Jashari notified the court that he

wished to withdraw his application, the IJ informed him that that application was “the only form

of relief” he had pending. (R. 130–31.) After indicating that he understood, Jashari proceeded to

withdraw his application. Based on this record, it was not error to find that Jashari had

knowingly withdrawn his entire I-589 application.

Even assuming that the IJ and the BIA had erred in this determination, however, Jashari

cannot demonstrate any resulting prejudice because of the separate finding that he had filed a

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frivolous asylum application. As discussed above, that finding prevents Jashari from receiving

any immigration benefits. Therefore, even if the IJ and the BIA erred in finding that Jashari had

withdrawn his entire I-589 application, that error does not amount to a due process violation.

5. Jashari Has Not Demonstrated Changed Circumstances

Finally, Jashari argues that the BIA erred by not “remanding the case to the IJ to address

the issue of changed circumstances at a full and fair hearing.” (Pet. Br. at 29.) Jashari appears to

advance this argument as an additional ground on which he was denied due process. In order to

prevail, Jashari must therefore “demonstrate that (1) there was a defect in the removal

proceeding; and (2) the defect was prejudicial.” Debek, 380 F. App’x at 497 (citing Ndrecaj, 522

F.3d at 673). On appeal to the BIA, Jashari argued that he was denied due process when he was

not granted a new hearing to consider possibly changed circumstances arising from his

conversion from Islam to Christianity.

The BIA rejected this argument, finding that “there is no evidence in the record to

support the respondent’s claim of changed circumstances” and “no evidence in the record to

show that the respondent will be harmed in his country based on his alleged conversion.” (R. 5.)

The BIA further noted that despite being “provided with several opportunities to advise the [IJ]

about his changed circumstances,” Jashari “never argued before the [IJ] that circumstances had

changed . . . or articulated a need to have a merits hearing based on the changed circumstances,”

suggesting that Jashari had failed to preserve this argument. (Id.)

Even assuming that we have jurisdiction because the BIA considered the merits of this

argument despite Jashari’s failure to preserve it, Jashari has not demonstrated any error. In

relevant part, the submitted evidence consists of a letter indicating that Jashari had converted to

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Christianity from Islam and copies of the State Department’s “International Religious Freedom

Report for 2013” concerning Kosovo and “Human Rights Report” for Kosovo and Serbia.

Jashari appears to argue that the information in these documents warrants a finding of

“changed circumstances” impacting his eligibility for asylum. Jashari does not, however, cite to

any particular part of the report as support of his argument that his circumstances had changed;

the entirety of his argument is that the BIA “erroneously found that there is no evidence that

[Jashari] will be harmed if return [sic] to his home country.” (Appellant’s Br. at 29.) We agree

with the BIA’s conclusion: there is “no evidence in the record to show that [Jashari] will be

harmed in his country based on his alleged conversion.” (R. 5.) Even assuming that Jashari

demonstrated changed circumstances, however, he cannot demonstrate prejudice, a necessary

element of a due process claim. As discussed at length above, Jashari filed a frivolous asylum

application and the requested relief was denied on that independent basis. Jashari’s claim is

therefore without merit.

III. Conclusion

For the reasons set out above, we affirm the Board of Immigration Appeals’ order of

removal.

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