Filed: Mar. 15, 2017
Latest Update: Mar. 03, 2020
Summary: 15-376 Lin v. Sessions BIA Vomacka, IJ A076 280 193 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 NOT
Summary: 15-376 Lin v. Sessions BIA Vomacka, IJ A076 280 193 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..
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15-376
Lin v. Sessions
BIA
Vomacka, IJ
A076 280 193
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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
15th day of March, two thousand seventeen.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
JIANG LIN,
Petitioner,
v. 15-376
NAC
JEFFERSON B. SESSIONS, III, UNITED
STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Chun W. Wong, New York, N.Y.
*
The Clerk of Court is directed to amend the caption as set forth
above.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Holly M.
Smith, Senior Litigation Counsel;
Edward C. Durant, Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Petitioner Jiang Lin, a native and citizen of the People’s
Republic of China, seeks review of the BIA’s affirmance of an
Immigration Judge’s (“IJ”) denial of asylum based on Lin
knowingly filing a frivolous application. In re Jiang Lin, No.
A076 280 193 (B.I.A. Jan. 21, 2015), aff’g No. A076 280 193
(Immig. Ct. N.Y.C. Aug. 21, 2013). We have reviewed the
decisions of both the IJ and BIA “for the sake of completeness,”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006), applying well established standards of review, see
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
513 (2d Cir. 2009). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
“A person who makes an application for asylum determined
to be ‘frivolous,’ or deliberately and materially false, is
2
subject to a grave penalty: permanent ineligibility for most
forms of relief under the immigration laws.” Mei Juan Zheng
v. Mukasey, 514 F.3d 176, 178 (2d Cir. 2008); see 8 U.S.C.
§ 1158(d)(6). “Given the serious consequences of a
frivolousness finding, the [governing] regulation provides a
number of procedural safeguards[, including] . . . (1) notice
to the alien of the consequences of filing a frivolous
application; (2) a specific finding by the Immigration Judge
or the Board 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.” Matter
of Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007) (discussing 8
C.F.R. § 1208.20).
The record belies Lin’s assertion that the agency failed
to comply with these procedures. Lin received notice of the
consequences of filing a frivolous application on multiple
occasions, first, orally from the IJ after Lin first expressed
a desire to apply for asylum, and second, in writing on the very
application form Lin filed. The knowing falsity of Lin’s
3
application is evident from his affidavit, which admits that
his claim was “made up” and that he “knew this” before filing
his application. C.A.R. 737. The record also shows that Lin
himself obtained some of the false documents proffered to
support his initial application. Lin had sufficient
opportunity to account for his application’s contents; the
agency merely rejected his explanation and concluded that he
was not deceived into thinking that he was filing a correct
application by his first attorney.
Lin nevertheless maintains that he lacked the mental
capacity to receive notice because he was a minor under the
influence of an unscrupulous attorney. Lin cites no authority
supporting the proposition that a minor categorically lacks the
legal capacity to receive notice. Moreover, the agency’s
finding that Lin knew he was filing a false application and was
aware of the consequences of doing so is supported by
substantial evidence. See 8 U.S.C. § 1252(b)(4)(B). Lin was
17 years’ old when he signed the application under oath in court
with the aid of an interpreter. He was 18 when he proffered
his affidavit. Nothing in the record suggests that Lin did not
understand the warnings he received or what he was signing. See
id.; Ahmed v. Ashcroft, 286 F.3d 611, 612 (2d Cir. 2002) (“To
4
reverse under the substantial evidence standard, ‘we must find
that the evidence not only supports that conclusion, but compels
it.’” (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1
(1992))).
Lin’s claim that he was denied due process because his
second attorney rendered ineffective assistance by advising him
to admit to fraud instead of simply withdrawing the application
is also meritless. Setting aside that the attorney’s conduct
was directed at remedying Lin’s fraud, Lin’s due process
challenge fails for lack of prejudice. See Garcia-Villeda v.
Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (“Parties claiming
denial of due process in immigration cases must, in order to
prevail, ‘allege some cognizable prejudice fairly attributable
to the challenged process.’” (quoting Lattab v. Ashcroft,
384
F.3d 8, 20 (1st Cir. 2004))). “[A] withdrawn application can
serve as the basis for a frivolousness finding,” Mei Juan Zheng
v. Holder,
672 F.3d 178, 180 (2d Cir. 2012), and Lin failed to
show that his fraud would not have been discovered but for his
admission. As the IJ observed, Lin’s withdrawal of his initial
application and substitution with a factually inconsistent
claim, as well as the fact that his first attorney’s firm had
been raided by authorities in connection with an asylum fraud
5
investigation, would have alerted the IJ and the Government that
the contents of Lin’s initial application were false.1
Lin’s remaining arguments also fail. An independent Sixth
Amendment right to counsel does not attach in immigration
proceedings. See Debeatham v. Holder, 602 F.3d 481, 485 (2d
Cir. 2010). Moreover, his contention regarding the burden of
proof in establishing a frivolousness finding was not presented
to the agency and is thus waived. See Lin Zhong v. U.S. Dep’t
of Justice,
480 F.3d 104, 107 n.1 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
1
Insofar as Lin also challenges his original counsel’s
assistance as ineffective, the claim fails. Lin cannot show
that he was prejudiced by his counsel’s performance, see
Garcia-Villeda v. Mukasey, 531 F.3d at 149, because he knowingly
took part in the fabrication of elements of his initial asylum
petition and because he lacked an otherwise meritorious basis
for seeking asylum.
6
