Henri Ndibu v. Loretta Lynch

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2250
HENRI KAMENGA NDIBU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 27, 2016 Decided: May 19, 2016
Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit
Judges.
Petition for review denied by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Thacker and Judge
Harris joined.
ARGUED: Allison Lukanich, MELO & HURTADO PLLC, Raleigh, North
Carolina; Jim Melo, U.S. COMMITTEE FOR REFUGEES & IMMIGRANTS,
Raleigh, North Carolina, for Petitioner. Jennifer A. Singer,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Nitin Kumar Goyal, Kevin Schroeder, MELO
& HURTADO PLLC, Raleigh, North Carolina, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Russell J.E. Verby, Senior Litigation Counsel,
Nancy K. Canter, Trial Attorney, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
2
TRAXLER, Chief Judge:
Henri Kamenga Ndibu petitions for review of a final order
of removal issued by the Board of Immigration Appeals (“BIA”)
which affirmed the immigration judge’s conclusion that Ndibu
filed a frivolous asylum application and was therefore
ineligible for adjustment of status. For the reasons that
follow, we deny Ndibu’s petition for review.
I.
Ndibu, a native and citizen of the Democratic Republic of
the Congo (“DRC”), entered the United States in September 2001
using a Canadian passport that did not belong to him. In July
2004, after evading the attention of immigration officials for
nearly three years, Ndibu filed an affirmative application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Ndibu claimed that he
feared persecution on account of his political opinion were he
to return to the Congo. According to Ndibu’s supporting
affidavit, he was living in the DRC in June 2003 when he was
arrested by government security forces because of his membership
in the Army of Victory Church and participation in the “Let us
Save the Congo” movement. Ndibu alleged that he was detained
for 15 days, during which time he was “endur[ing] severe
mistreatments, . . . sexual abuses imposed over us by the police
officers, and other types of tortures.” J.A. 1542-43.
3
In September 2004, the Department of Homeland Security
(“DHS”) placed Ndibu in removal proceedings, charging him with
removability for being present in the United States without
valid documentation. See 8 U.S.C. §§ 1227(a)(1)(A);
1182(a)(7)(A)(i)(I). At the removal hearing, Ndibu testified
and essentially repeated the claims he asserted in his
affidavit. In April 2006, the immigration judge denied Ndibu
relief from removal. The immigration judge concluded that Ndibu
failed to demonstrate that he filed his asylum claim within one
year of entering the United States, finding that Ndibu’s
testimony that he arrived in the United States in 2003 was not
credible and that he failed to present other evidence supporting
an entry date of 2003. The immigration judge offered specific
reasons for its adverse credibility determination in this
regard. Additionally, the immigration judge concluded that
Ndibu failed to establish “a clear probability of persecution”
and denied his claim for withholding of removal. Singh v.
Holder, 699 F.3d 321, 332 (4th Cir. 2012) (“To prevail on his
withholding of removal claim, [the applicant] must establish a
clear probability of persecution on the basis of race, religion,
nationality, political opinion, or membership in a particular
social group.” (internal quotation marks omitted)). In
explaining her decision, the immigration judge implied that
Ndibu lacked credibility regarding his “membership in the
4
political organizations that he claimed to have belonged to,”
J.A. 302, but did not provide specific reasons for doubting
Ndibu’s credibility in this regard. Furthermore, the
immigration judge stated that even if Ndibu’s testimony had been
credible regarding his political affiliations, the evidence
still would have failed to demonstrate a “a clear probability of
persecution” if he returned to the DRC. J.A. 302. And,
finally, the immigration judge denied relief under the
Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c),
stating summarily that Ndibu failed to show “that it would be
more likely than not that [Ndibu] would be tortured if he were
removed to the [DRC].” J.A. 303.
Ndibu appealed, and in April 2008, the BIA affirmed the
denial of asylum, concluding that substantial evidence supported
the immigration judge’s conclusion that Ndibu “failed to
establish, through clear and convincing evidence, that his
asylum application was filed within one year of his arrival in
the United States.” J.A. 261. As to the immigration judge’s
denial of withholding of removal and relief under the CAT,
however, the BIA found the decision to be “inadequate for
purposes of our appellate review.” J.A. 261. The BIA concluded
that the immigration judge “did not adequately explain the
reasons for her adverse credibility finding as to [Ndibu’s
political affiliation].” J.A. 261. The BIA also rejected the
5
alternative conclusion that Ndibu’s evidence would have been
insufficient even if Ndibu’s testimony had been credible because
the immigration judge “failed to make a specific finding as to
whether such past treatment, if credible, constituted
persecution on account of a protected ground, and, if so, why
the presumption of 8 C.F.R. § 1208.16(b)(1) would be overcome.”
J.A. 262. 1 Thus, the BIA remanded the matter “for a more
complete decision” as to the withholding and CAT claims.
In September 2008, Ndibu failed to appear before the
immigration judge for the remanded proceedings, and he was
ordered removed in absentia. In November 2010, however, the
immigration judge granted Ndibu’s motion to reopen proceedings
on the grounds that Ndibu did not receive sufficient notice of
the hearing following remand from the BIA.
During the proceedings on the remanded claims for relief
from removal, Ndibu, represented by new counsel, applied for an
1The applicable regulation provides that “[i]f the
applicant is determined to have suffered past persecution in the
proposed country of removal on account of” one of the protected
grounds, “it shall be presumed that the applicant’s life or
freedom would be threatened in the future in the country of
removal” for the same reason. 8 C.F.R. § 1208.16(b)(1)(i).
“This presumption may be rebutted if . . . [the] immigration
judge finds by a preponderance of the evidence” that “[t]here
has been a fundamental change in circumstances such that the
applicant's life or freedom would [no longer] be threatened” or
“[t]he applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country
of removal.” Id.
6
adjustment of status on the basis of his marriage to a United
States citizen in 2002. See 8 U.S.C. § 1255(a). “Because an
alien seeking to adjust his status [to that of a lawful
permanent resident] is in a position similar to that of an alien
seeking entry into the United States,” Ferrans v. Holder, 612
F.3d 528, 531 (6th Cir. 2010), he is required to establish that
he is admissible in the first place, see 8 U.S.C. § 1255(a).
The admissibility requirement was problematic for Ndibu, who
admitted to the immigration court that he had previously “sought
to procure an immigration benefit by fraud or by concealing or
misrepresenting a material fact,” J.A. 1000, in that (1) he
first entered the United States in 2001 using a “Canadian
Passport issued to Charles Legault” and (2) he “[made] false
statements to the Immigration Court so that [he] could obtain
asylum,” J.A. 1001. An alien is inadmissible who “by fraud or
willfully misrepresenting a material fact, seeks to procure (or
has sought to procure or has procured) a visa, other
documentation, or admission into the United States or other
benefit provided under [the INA].” 8 U.S.C. § 1182(a)(6)(C)(i).
Therefore, Ndibu applied for a waiver of inadmissibility
pursuant to 8 U.S.C. § 1182(i), which permits the Attorney
General, in her discretion, to “waive the application of [§
1182(a)(6)(C)(i)] in the case of an immigrant who is the spouse
. . . of a United States citizen.”
7
At the waiver hearing, Ndibu testified that he entered this
country on September 8, 2001, using the aforementioned Canadian
passport which was obtained for him by his parents because they
believed it was unsafe for then-19-year-old Ndibu to remain in
the DRC. Ndibu claimed that he did not want to enter the United
States under false pretenses but eventually acceded to pressure
from his parents. Ndibu married his wife, a United States
citizen, in December 2002. He subsequently asked his brother,
who enjoyed permanent legal resident status, to help him adjust
his status. Ndibu’s brother incorrectly advised him that the
only way for him to obtain an adjustment of status was to apply
for asylum, and referred Ndibu to a friend named George, who was
not a lawyer but prepared the asylum application for Ndibu and
helped him file it in 2004. Ndibu testified that George had
concocted the facts supporting his asylum claim that he feared
political persecution if he were to return to the DRC, and Ndibu
admitted falsely testifying at the asylum hearing that he was
tortured and sexually abused during his alleged 2003 detention.
Likewise, Ndibu admitted to the court that his application
falsely represented that he arrived in 2003 and that he signed
the asylum application knowing that it was false. Ndibu also
8
acknowledged that he lied on the application by stating that he
was not married. 2
Ndibu nonetheless suggested to the immigration court that,
despite having made a mistake in agreeing to submit a false
asylum claim, he had otherwise lived as a law-abiding member of
the community and that he was worthy of a fraud waiver to enable
him to adjust his status and remain in the United States with
his family.
On May 23, 2013, the immigration judge issued an order
denying Ndibu’s applications for a waiver of inadmissibility and
an adjustment of status. The immigration judge found that Ndibu
“knowingly made a frivolous application for asylum,” 8 U.S.C. §
1158(d)(6), and “‘deliberately fabricated’ material elements of
his claim after having been advised of the consequences for so
doing,” J.A. 77 (citing 8 C.F.R. § 1208.20). The court
specifically noted that Ndibu “knew it was false when he claimed
2 After asylum was denied in 2004, Ndibu hired a Maryland
immigration attorney to represent him. Ndibu testified that
this attorney did not meet with Ndibu in person, explore his
options or take any steps at all to assist him and simply
continued forward with the false asylum claim. According to the
record, this attorney was later convicted of conspiracy to
prepare false asylum applications, immigration fraud, and
obstruction of official immigration proceedings.
After the removal order was entered against Ndibu in
absentia, he hired his current counsel who has provided
excellent representation in the pursuit of an adjustment of
status for Ndibu.
9
[that he was] tortured and sexually abused in the Congo,” J.A.
77, even though the I-589 asylum application Ndibu signed
expressly warned against filing a frivolous claim for asylum.
As a consequence of the frivolousness finding, the immigration
judge determined Ndibu was “permanently ineligible for any
benefits under [the INA].” 8 U.S.C. § 1158(d)(6).
The BIA dismissed Ndibu’s subsequent appeal. The BIA agreed
that Ndibu was permanently barred from receiving any immigration
benefits because he “knowingly made a frivolous application for
asylum after having been advised of the consequences of doing
so.” J.A. 2. The BIA observed that Ndibu “conceded at his
hearing that he fabricated numerous aspects of his claim . . . ,
including his date of entry, his claimed detention and torture
in [the DRC], and his marital status, among other things.” J.A.
2. Ndibu acknowledged to the BIA that he signed the asylum
application knowing that it contained falsities but explained
that he did so because “‘[he] was under pressure, and . . . made
a mistake.’” J.A. 2. The BIA found no clear error in the
immigration judge’s determination that this explanation did not
excuse the material fabrications contained in the asylum
application.
The BIA likewise rejected Ndibu’s argument that the
frivolous application bar should not be applied because he did
not have effective notice of the consequences of filing a
10
frivolous asylum application. The BIA, like the immigration
judge, noted that the standard asylum application form I-589
provided Ndibu “with written notice of the consequences of
filing a frivolous asylum application.” J.A. 3. The BIA
concluded that this constituted adequate warning under 8 U.S.C.
§ 1158(d)(6).
Next, the Board found that the involvement of third parties
(such as his brother’s friend George) in the application process
did not excuse Ndibu’s fraudulent statements. The BIA pointed
out that Ndibu had “numerous opportunities . . . to correct the
false statements” but failed to do so, and that he “conceded
that the handwriting throughout the application was his, and
that he signed the document . . . aware . . . the information
contained therein [was] false.” J.A. 3. The BIA therefore
dismissed Ndibu’s appeal. Ndibu subsequently petitioned this
court for review.
II.
An alien who “has knowingly made a frivolous application
for asylum” is “permanently ineligible” for immigration
benefits. 8 U.S.C. § 1158(d)(6). An asylum application is
frivolous “if any of its material elements is deliberately
fabricated.” 8 C.F.R. § 1208.20. The INA mandates that “[a]t
the time of filing an application for asylum, the Attorney
General shall . . . advise the alien . . . of the consequences .
11
. . of knowingly filing a frivolous application for asylum.” 8
U.S.C. § 1158(d)(4)(A). Notice is a prerequisite to a finding
of frivolousness; before an application for asylum is declared
frivolous, the alien seeking asylum must be given the
statutorily-required notice. See 8 U.S.C. § 1158(d)(6) (“If the
Attorney General determines that an alien has knowingly made a
frivolous application for asylum and the alien has received the
notice under paragraph (4)(A), the alien shall be permanently
ineligible for any benefits under [the INA] . . . .” (emphasis
added)). 3
Ndibu first contends that he did not receive adequate
notice of the consequences of filing a frivolous asylum claim.
The record reflects that on July 22, 2004, Ndibu printed his
name and signed his asylum application directly underneath the
3 The BIA has provided a list of requirements that must be
met before an asylum application is declared frivolous:
(1) notice to the alien of the consequences of
filing a frivolous application; (2) a specific finding
by the Immigration Judge 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.
In re Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007); see 8 C.F.R. §
1208.20. For our purposes, only the notice requirement is at
issue.
12
paragraph labeled “WARNING.” That paragraph warns, among other
things, 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.”
J.A. 1538. By signing the application, Ndibu affirmed “under
penalty of perjury” that “this application and the evidence
submitted with it are all true and correct.” Id. Moreover,
during the initial asylum hearing in April 2006, the immigration
judge asked Ndibu if he had any changes or additions to make to
the application. Ndibu’s counsel noted only a few typographical
errors.
Ndibu acknowledges that the I-589 asylum application form
sets forth a warning about the consequences of filing a
frivolous asylum application. Ndibu 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 statute requires that “[a]t the time of
filing an application for asylum, the Attorney General shall . .
. advise the alien . . . of the consequences . . . of knowingly
filing a frivolous application for asylum.” 8 U.S.C. §
1158(d)(4)(A). The warning supplied by the I-589 form clearly
satisfies these basic requirements by advising asylum applicants
that they will be “permanently ineligible for any benefits under
the [INA]” if they knowingly file a frivolous application. J.A.
13
1538. And, because every asylum applicant must complete, sign
and submit an I-589 form, the inclusion of the warning on the
form itself ensures that the required notice is received “[a]t
the time of filing.” 8 U.S.C. § 1158(d)(4)(A). In fact,
because the applicable “regulations permit filing the
application in a variety of different ways, including by mail or
at a hearing before an [immigration judge],” placing “[t]he
warning on the asylum 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.” Niang v. Holder, 762 F.3d 251, 254 (2d Cir. 2014) (per
curiam) (emphasis added) (internal quotation marks omitted).
The INA makes no mention of the form that the required notice
must take, oral or written. It simply does not require that an
immigration judge advise an alien—orally or in in writing—of the
consequences of knowingly filing a frivolous application.
Ndibu concedes that every circuit court of appeals to have
considered the issue has ruled that the written warning set
forth on the I-589 asylum application satisfies the notice
requirement of § 1158(d)(4)(A) without an additional oral
warning from an immigration judge at the asylum hearing. See
Niang, 762 F.3d at 254; Ruga v. U.S. Att’y Gen., 757 F.3d 1193,
1197 (11th Cir. 2014); Pavlov v. Holder, 697 F.3d 616, 618 (7th
Cir. 2012); Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir.
14
2012); Ribas v. Mukasey, 545 F.3d 922, 929–30 (10th Cir. 2008).
We find these decisions to be persuasive and join these courts
in concluding the warning supplied on the I-589 form is
sufficient in and of itself and need not be supplemented by the
immigration judge. 4
Nonetheless, Ndibu urges us to ignore our own plain reading
of the text, break from our sister circuits and defer to the
BIA’s interpretation of the notice provision, which Ndibu
contends is contrary to the foregoing line of cases. We decline
to do so, for a couple of reasons. First, because the language
of the statute is clear and unambiguous, “that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.” Chevron
U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984). “[D]eference to [the agency’s] statutory
interpretation is called for only when the devices of judicial
4 We further note that, as in the cases decided by our
sister circuits, there is no credible claim here that a language
barrier prevented Ndibu from understanding the consequences of
filing a frivolous asylum application, as supplied on the I-589
form. See Niang, 762 F.3d at 254 n.1; Ruga, 757 F.3d at 1196;
Pavlov, 697 F.3d at 618–19; Cheema, 693 F.3d at 1049 n.4; Ribas,
545 F.3d at 930. Ndibu conceded before the immigration judge
that he was aware “of the consequences of knowingly filing a
frivolous asylum claim,” J.A. 207, and that the notice
requirement “ha[d] been clearly complied with,” J.A. 208. His
claim before this court that he did not understand the
consequences stated on the I-589 form is thus foreclosed by the
record.
15
construction have been tried and found to yield no clear sense
of congressional intent.” General Dynamics Land Sys., Inc. v.
Cline, 540 U.S. 581, 600 (2004). It is clear that Congress did
not intend to require oral notice from an immigration judge to
satisfy § 1158(d)(4)(A).
Second, even if we were to consider the line of BIA
decisions relied upon by Ndibu, these decisions do not aid him.
See Matter of X-M-C-, 25 I. & N. Dec. 322 (BIA 2010); Matter of
B-Y-, 25 I. & N. Dec. 236 (BIA 2010); Matter of Y-L-, 24 I. & N.
Dec. 151 (BIA 2007). In these decisions, the BIA did not
conclude that the INA mandated additional oral warnings from the
immigration judge at the asylum hearing; rather, the BIA merely
suggested that “it would be a good practice for an Immigration
Judge who believes that an applicant may have submitted a
frivolous asylum application to bring this concern to the
attention of the applicant prior to the conclusion of
proceedings.” Matter of Y-L-, 24 I. & N. Dec. at 159-60; see
Matter of B-Y-, 25 I. & N. Dec. at 242 (“[O]ur ‘good practice’
suggestion in Matter of Y-L- was not meant to add a blanket
requirement that an Immigration Judge must provide additional
warnings during the course of the merits hearing that a
frivolousness determination is being considered.”). Moreover,
the purpose of this particular “good practice” directive from
the BIA was “to afford a sufficient opportunity [for the asylum-
16
seeker] to account for discrepancies” in the application for
asylum. Matter of Y-L-, 24 I & N Dec. at 159. This line of
decisions does not purport to interpret the manner in which the
notice required at the time of filing under § 1158(d)(4)(A) is
to be issued; rather, these decisions provide guidance as to
what is required to satisfy the regulation mandating that
“during the course of the proceedings, [the applicant] [have]
sufficient opportunity to account for any discrepancies or
implausible aspects of the claim.” 8 C.F.R. § 1208.20 (emphasis
added).
In sum, we conclude that the notice set forth in the I-589
application for asylum suffices to satisfy the requirement under
§ 1158(d)(4)(A) that the applicant be notified of the
consequences of filing a frivolous application. Although an
immigration judge is free to give an applicant additional
warnings during the hearing, there is no statutory requirement
that he do so.
III.
We touch briefly on Ndibu’s remaining arguments, finding
them to be without merit. Ndibu asserts that the notice was
inadequate because his English ability was limited at the time
he filed his initial application and because he was assisted by
an unlicensed individual, and later by ineffective legal
counsel. Accordingly, Ndibu argues that affirming the
17
frivolousness finding would amount to a due process violation.
As the Attorney General points out, however, Ndibu acknowledged
under oath at the hearing in March 2013 that he knew when he was
signing the asylum application in 2004 that it contained false
information. Specifically, he admitted 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. Ndibu acknowledged that he knew the information
was false when he signed the application attesting to its
contents. Accordingly, Ndibu’s assertion now that he did not
know what he was doing due to a language barrier, and blaming
his preparer and counsel for his frivolous application, is
unavailing, since he clearly stated that he knowingly lied and
committed perjury. 5 Given that he acknowledged intentionally
lying on his application and committing perjury, Ndibu cannot
show prejudice to support a due process claim.
Ndibu finally asserts that it was error for the immigration
judge to make a frivolousness finding because the issue was not
properly before the immigration judge on remand. In April 2008,
5Further, as the Attorney General notes, Ndibu made no
attempt to comply with the requirements of Matter of Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988), as required to set forth an
ineffective assistance claim in immigration proceedings. See
Xing Yang Yang v. Holder, 770 F.3d 294, 299 n.6 (4th Cir. 2014).
18
the BIA sustained the immigration judge’s denial of asylum on
the basis that Ndibu failed to demonstrate that he applied for
asylum within one year of his arrival in the United States. The
BIA remanded Ndibu’s claims for withholding of removal under the
INA and the CAT; therefore, Ndibu’s claim for asylum was not
covered by the remand. Ndibu argues that § 1158(d)(6) “implies
that [a] frivolous finding will be made only during the time the
asylum application is before the adjudicating body, not after a
final determination has already been taken.” Brief of
Petitioner at 25. Ndibu thus believes that once the BIA
affirmed the immigration judge’s denial of asylum, his asylum
claim was no longer a “live” issue and it was improper on remand
for the immigration judge to make a frivolousness finding.
Ndibu did not raise this particular argument before the BIA
on appeal from the immigration judge’s finding that he had filed
a frivolous asylum application. Instead, Ndibu argued to the
BIA that he withdrew his asylum application following remand and
voluntarily confessed his false asylum claims, “elect[ing] to
correct prior misrepresentations in the interest of good faith.”
J.A. 28. Because he confessed and “withdrew” the asylum claim
without being coerced by the court, Ndibu argued the
frivolousness bar should not be applied. This is a different
argument than the one Ndibu raised in the petition for review to
this court. Failure to make the argument that a frivolousness
19
finding was inappropriate on remand deprives us of jurisdiction
to consider the claim. See Tiscareno-Garcia v. Holder, 780 F.3d
205, 210 (4th Cir. 2015) (observing that “an alien who does not
raise a particular claim before the BIA fails to exhaust his
administrative remedies as to that claim” such that “the federal
courts lack jurisdiction to consider it”). Accordingly, we
reject this argument as well.
IV.
In accordance with the foregoing discussion, we deny
Ndibu’s petition for review.
PETITION FOR REVIEW DENIED
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