Xiu Lan Zheng v. Holder

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 5