Case: 13-14377    Date Filed: 07/02/2014   Page: 1 of 10


                                                                [PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 13-14377
                            Non-Argument Calendar
                          ________________________

                           Agency No. A095-969-131



ENTELA RUGA,
a.k.a. Entela Dollaku,
a.k.a. Entela Miranda,

                                                                         Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                  (July 2, 2014)

Before HULL, MARCUS, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge:
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       Entela Ruga, 1 a native and citizen of Albania, petitions this Court for review

from a decision of the Board of Immigration Appeals (BIA). The BIA’s decision

affirmed an Immigration Judge’s (IJ) finding that Ms. Ruga was subject to removal

and ineligible for relief from deportation under the Immigration and Nationality

Act (INA) because she knowingly filed a frivolous application for asylum. In her

petition, Ms. Ruga argues that (1) she did not receive notice, in accordance with

the statutory requirements, of the grave consequences of filing a frivolous asylum

application; and (2) an IJ order granting her motion to reopen had the effect of

triggering a new requirement that she be re-notified of the consequences of

continuing to pursue a frivolous asylum application. 2 After careful consideration,

we deny the petition.




1
  Ms. Ruga filed her asylum application under the name “Entela Dollaku,” but does not dispute
that the application in the administrative record is her own. To avoid confusion, this opinion
uses “Ms. Ruga” throughout.
2
  Ms. Ruga also claims that the frivolity determination does not preclude her from seeking
withholding of removal and that the notice deficiencies violate her constitutional due process
rights. But Ms. Ruga did not pursue her application for withholding of removal after
withdrawing her asylum application or advance her due process claim before the BIA, so these
issues are not properly before us. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (noting that this
Court may review a final order of removal only to the extent that the alien “exhausted all
administrative remedies”); see also Amaya-Artunduaga v. U.S. Attorney Gen., 

,
1250 (11th Cir. 2006) (per curiam) (“We lack jurisdiction to consider a claim raised in a petition
for review unless the petitioner has exhausted his administrative remedies with respect thereto.”);
Sundar v. INS, 

, 1325 (11th Cir. 2003) (finding that even due process challenges
must be exhausted “where the claim is within the purview of the BIA which can provide a
remedy”).


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                                         I.

      Ms. Ruga was admitted to the United States in April 2001 on a tourist visa.

In 2004, she filed for asylum. The asylum application contained a number of

assertions of persecution and abuse in Albania, which Ms. Ruga admits are false.

At the end of the standard I-589 asylum application form Ms. Ruga signed, it

contained the following warning in bold typeface:

      WARNING: Applicants who are in the United States illegally are
      subject to removal if their asylum or withholding claims are not
      granted by an Asylum Officer or an Immigration Judge. Any
      information provided in completing this application may be used as
      the basis for the institution of, or as evidence in, removal proceedings
      even if the application is later withdrawn. Applicants determined to
      have knowingly made a frivolous application for asylum will be
      permanently ineligible for any benefits under the Immigration and
      Nationality Act. See 208(d)(6) of the Act and 8 CFR § 208.20.

Ms. Ruga signed her name below the warning.

      After she submitted the application, she met with an asylum officer for an

interview. At the start of the interview, Ms. Ruga signed an oath which reiterated

the warning on the I-589 application form:

      I also understand that if I filed my asylum application on or after April
      1, 1997, I shall be permanently ineligible for any benefits under the
      Immigration and Nationality Act if I knowingly filed an application
      for asylum in which any of the material elements were deliberately
      fabricated.




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Again, Ms. Ruga signed underneath this warning. During the interview with the

asylum officer, Ms. Ruga stood by many of the false representations contained in

her application.

      The asylum officer reviewing Ms. Ruga’s application referred it to an IJ

because he did not think the application should be granted. Ms. Ruga was served

with a notice to appear charging her as removable in 2004, and in 2007 she was

served with notice of additional charges of removability, including the charge that

she was not entitled to any relief under the INA because she knowingly filed a

frivolous asylum application.

      The IJ, proceeding with Ms. Ruga in absentia because she did not attend the

scheduled hearing, initially found her removable and ineligible for relief from

removal because she filed a frivolous asylum application. The IJ, however,

vacated this determination after Ms. Ruga filed a motion to reopen her removal

proceedings six months later. Ms. Ruga, however, fared no better the second time.

The IJ again concluded that Ms. Ruga was ineligible for relief under the INA

because she knowingly filed and pursued a frivolous asylum application, over her

objections to the notice she received about the consequences of filing a frivolous

application. The BIA affirmed the IJ’s decision on appeal. Ms. Ruga asks us to

reverse the BIA’s determination that the notice she received about frivolous

applications conformed to the statutory requirements.


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                                       II.

      It is important first to clarify the issues before us in this appeal and the

nature of our review. The only questions we are considering are (1) whether the

written warnings provided to Ms. Ruga satisfied the requirement that she be

notified of the consequences of filing a frivolous application; and (2) what, if any,

effect the granting of her motion to reopen had on the adequacy of the notice she

was provided before her motion was granted. Ms. Ruga does not challenge in this

appeal the BIA’s determination that she knowingly filed a frivolous application.

Neither does she argue that she did not see or that she failed to understand the

written notice included on her I-589 form or provided to her during her interview

with the asylum officer. Because she has not raised these issues in her brief on

appeal, she has abandoned them and they have no bearing on our decision. See

Sepulveda v. U.S. Attorney Gen., 

, 1228 n.2 (11th Cir. 2005) (per

curiam) (“When an appellant fails to offer argument on an issue, that issue is

abandoned.”); Timson v. Sampson, 

, 874 (11th Cir. 2008) (per

curiam) (“While we read briefs filed by pro se litigants liberally, issues not briefed

on appeal by a pro se litigant are deemed abandoned.” (citations omitted)).

       We review de novo the BIA’s finding, based on statutory interpretation, that

Ms. Ruga received notice consistent with the statutory requirements. See Barreto-

Claro v. U.S. Attorney Gen., 

, 1338 (11th Cir. 2001). When


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conducting our review, we look in this case to both the BIA decision and the IJ

decision, because the BIA “explicitly agreed” with the IJ’s findings about the

adequacy of the notice Ms. Ruga received. Xiu Ying Wu v. U.S. Attorney Gen.,

, 492 (11th Cir. 2013).

                                               III.

       Under the INA, an alien who “has knowingly made a frivolous application

for asylum and . . . received the notice under paragraph (4)(A) . . . shall be

permanently ineligible for any benefits under this chapter, effective as of the date

of a final determination on such application.” INA § 208(d)(6), 8 U.S.C.

§ 1158(d)(6). Paragraph (4)(A) provides 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.” 3 

8 U.S.C. § 1158(d)(4). “[A]n asylum application is frivolous if any of

its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20.




3
  The statute also requires that the Attorney General “advise the alien of the privilege of being
represented by counsel.” INA § 208(d)(4)(A), 8 U.S.C. § 1158(d)(4)(A). It bears mention that
neither the warning on the I-589 application form nor the oath Ms. Ruga signed before the
asylum officer advised her of her right to representation. But Ms. Ruga’s brief explicitly limits
her arguments on appeal to challenge the adequacy of the notice she received about the
consequences of filing a frivolous application. As a result, our opinion today is limited to
analyzing the adequacy of the notice about the consequences, see 

n.2, and has nothing at all to say about whether Ms. Ruga received notice satisfying every
requirement set forth in INA § 208(d)(4)(A), 8 U.S.C. § 1158(d)(4)(A).


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                                         A.

      Ms. Ruga first argues that the notice she received did not comply with the

requirements set forth in paragraph (4)(A) because the notice was not provided to

her by an IJ during the course of her removal proceedings.

      Although the question Ms. Ruga raises is a novel one in our Circuit, three

other Circuit Courts have considered the adequacy of the same written notices

Ms. Ruga received. See Pavlov v. Holder, 

, 618 (7th Cir. 2012);

Cheema v. Holder, 

, 1049–50 (9th Cir. 2012); Ribas v. Mukasey,

, 928–30 (10th Cir. 2008). We are persuaded by the reasoning from

these opinions, each of which concludes that written warnings meet the INA notice

requirement and that there is no need for that notice to be provided by an IJ.

      Pavlov is especially useful to us in addressing Ms. Ruga’s arguments.

Mr. Pavlov argued, as does Ms. Ruga, that only a warning provided by the IJ

during the removal proceedings would meet the notice requirement. 

. The Seventh Circuit noted that the Department of Homeland Security

provided Mr. Pavlov notice of the consequences twice: “once in the original

application form, and a second time before the interview” with an asylum officer.

Mr. Pavlov received is the same as the warning that was printed

on the I-589 form Ms. Ruga completed. See 

Circuit concluded

that “[t]his language complies with the statute and, because it was delivered by the


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Attorney General’s surrogate, supports disqualification under § 1158(d)(6).” 

following the Ninth and Tenth Circuits, the Seventh Circuit concluded

that delivery of this warning in the application itself, or at the time of the interview,

suffices:

       At least two other courts of appeals have concluded that delivery of
       this warning in the application itself, or at the time of the interview,
       suffices. Ribas v. Mukasey, 

(10th Cir. 2008); Cheema
       v. Holder, 

(9th Cir. 2012). This court said the same
       thing in Siddique v. Mukasey, 

(7th Cir. 2008). If it was
       not a holding then, it becomes a holding now.

; see also 

(holding “that the written

notice provided on the asylum form is sufficient” to meet the statutory requirement

that an applicant be notified of “the consequences of filing a frivolous

application”); 

(“We join the Tenth Circuit in concluding

that the written warning on the asylum application adequately notifies the applicant

of . . . the consequences of knowingly filing a frivolous application for

asylum . . . .”). 4

       We find the reasoning of our colleagues on the Seventh, Ninth, and Tenth

Circuits to be persuasive. The notice provision makes no mention of the way in
4
  The holding in Cheema is somewhat in tension with an earlier Ninth Circuit opinion on which
Ms. Ruga relies. In Chen v. Mukasey, 

(9th Cir. 2008), the Ninth Circuit suggested
that “notice of consequences of knowingly filing a frivolous application . . . must be issued to a
petitioner by an IJ.” 

But in Cheema, the Ninth Circuit clearly rejected the suggestion
that an IJ must provide the warning required by INA § 208(d)(4)(A), 8 U.S.C. § 1158(d)(4)(A),
and described the statement in Chen suggesting otherwise as mere dictum. 

n.3.


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which the notification should be delivered, nor does it require that an IJ deliver the

warning. See INA § 208(d)(4)(A), 8 U.S.C. § 1158(d)(4)(A). All the statute

requires is that the Attorney General deliver a warning, the substance of which lets

the applicant know that if she knowingly files a frivolous application she will be

forever ineligible for any relief under the INA. 

warning included in the I-589 application specifically advised

Ms. Ruga 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.” We agree with the Seventh, Ninth, and Tenth

Circuits that this written warning is itself enough to meet the statutory

requirements. We therefore reject Ms. Ruga’s argument that the notice she was

afforded was inadequate under the statute because it was not provided to her

verbally or by an IJ.

                                              B.

       Next, Ms. Ruga argues that the granting of her motion to reopen, which

vacated the IJ’s earlier frivolity finding, effectively vacated the earlier notice she

received and thus triggered a requirement that she be re-notified. 5



5
 The government argues that we should not consider this argument because it was not advanced
before the BIA. However, Ms. Ruga advanced the general argument that she did not receive
notice consistent with the statutory requirements, even if she did not couch it in these terms.
This is enough to satisfy the exhaustion requirements. See Montano Cisneros v. U.S. Attorney


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       Ms. Ruga’s position finds no support in the statute. Notice must be provided

“[a]t the time of filing an application for asylum.” INA § 208(d)(4), 8 U.S.C.

§ 1158(d)(4). Reopening the adjudication of Ms. Ruga’s asylum application did

not have the effect of re-filing her application as well. All it did was allow her to

continue pursuing an application she had previously filed. This being the case, the

warnings she was given at the time she filed her application survived the granting

of her motion to reopen. There was no need to provide any new warning to her

once the motion to reopen was granted, and indeed a warning given at that time—

long after the application was filed—may not even comply with the statute’s

requirements. See 

(considering a verbal warning provided

by an IJ and noting that “it is questionable whether this warning provided any

meaningful notice at all” since it was provided after the applicant “had already

filed the first application”).

                                              IV.

       Because Ms. Ruga received notice consistent with the INA’s requirement

that she be notified of the consequences of filing a frivolous asylum application at

the time of its filing, her petition for review is DENIED.




Gen., 

, 1228 n.3 (noting that a claim is adequately exhausted as long as the
petitioner presents the “core issue” to the BIA).


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