Sebina Shah v. Jefferson Sessions, 690 F. App'x 984

Petitioner Sebina Shah, a Nepalese national, sought adjustment of status but the BIA dismissed her appeal after an IJ found she filed a frivolous asylum application.
Shah signed an I-589 asylum application containing a statutory warning that knowingly filing a frivolous asylum application permanently bars benefits under the INA.
At an asylum interview she re-signed the application and a Declaration of Applicant that reiterated the frivolousness warning; her interpreter certified she understood the warning.
At a 2012 hearing Shah admitted parts of her asylum application were false (including a false 2005 reentry claim) and that she swore to tell the truth at the interview.
The IJ and BIA concluded Shah knowingly and deliberately fabricated a material element (date of entry/reentry), making the application frivolous and permanently barring her from adjustment of status.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Shah received required notice and opportunity to respond before a frivolousness finding	Shah contends she lacked required procedural safeguards and never testified to false facts	Government points to written warnings on I-589, signed reaffirmations, interpreter certification, and hearing admissions	Held: Adequate written notice and opportunity; warnings were provided and understood
Whether Shah knowingly made a frivolous asylum application (material fabrication)	Shah argues she only corrected date of entry and did not knowingly fabricate material facts	Government relies on Shah’s sworn statements at interview and her hearing admissions admitting false reentry claim	Held: Substantial evidence supports deliberate fabrication of material element; frivolousness established
Whether a frivolousness finding precludes consideration of an I-601 waiver	Shah argues IJ should have considered I-601 waiver which might excuse conduct	Government notes statute bars relief after frivolousness finding	Held: Frivolousness is a complete statutory bar; I-601 need not be considered
Whether BIA’s decision should be reviewed de novo or for substantial evidence	Shah challenges procedural compliance of BIA’s finding	Government relies on established standards (procedural safeguards reviewed de novo; facts for substantial evidence)	Held: Court reviewed procedural compliance de novo and factual findings for substantial evidence and upheld BIA/IJ decisions

Kulakchyan v. Holder, 730 F.3d 993 (9th Cir.) (explains review standards for frivolousness findings and materiality standard)
Cheema v. Holder, 693 F.3d 1045 (9th Cir.) (I-589 written advisals provide adequate notice of frivolousness consequences)
Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir.) (date-of-entry falsification can be a material element)