Filed: May 20, 2013
Latest Update: Feb. 12, 2020
Summary: 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 NOTA
Summary: 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 NOTAT..
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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
