Immigration – No Waiver for False Asylum Claim

Ndibu v. Lynch (Lawyers Weekly No. 001-091-16, 10 pp.) (Traxler) No. 14-2250, May 19, 2016; On Petition for Review. 4^th Cir.

Holding: Petitioner, a citizen of the Democratic Republic of the Congo who entered the U.S. on a phony Canadian passport and who admitted he had submitted a false asylum claim but said he was otherwise law-abiding, is not entitled to a fraud waiver to allow him to adjust his status and remain in the U.S. with his family, the 4^th Circuit holds.

Under 8 U.S.C. § 1158(d)(6), an alien who has knowingly made a frivolous application for asylum is “permanently ineligible” for immigration benefits. An asylum application is frivolous if any of its material elements is deliberately fabricated.

Petitioner acknowledged that the I-589 asylum application form sets forth a warning about the consequences of filing a frivolous asylum application. He argues, however, that this printed notice is inadequate and that § 1158(d)(4)(A) requires the immigration judge to provide an oral warning as well. We cannot agree. The warning supplied by the form clearly satisfies the requirements of § 1158(d)(4)(A) by advising asylum applicants that they will be permanently ineligible for benefits under the INA if they knowingly file a frivolous application. The inclusion of the warning on the form insured the required notice is received at the time of filing. The INA simply does not require that an immigration judge advise an alien – orally or in writing – of the consequences of knowingly filing a frivolous application.

Petitioner concedes that every circuit court of appeals to have considered the issue has ruled that the written warning set forth on the I-589 form satisfies the statutory notice requirement.

The language of the statute is clear and unambiguous. Even if we were to consider the line of decisions by the Board of Immigration Appeals on which petitioner relies, these decisions do not aid him. Although an immigration judge is free to give an applicant additional warnings during the hearing, there is no statutory requirement that he do so.

Petitioner’s remaining arguments have no merit. Petitioner admitted under oath that he falsely claimed he was not married, falsely claimed he entered this country in July 2003, and falsely testified that he was detained in the DRC, tortured and sexually abused on account of his political affiliations. He acknowledged he knew the information was false when he signed the application attesting to its contents.

Petition for review denied.