Takhir Khaytekov v. Merrick B. Garland, 26 F.4th 751

Background

Khaytekov, an Uzbek national, overstayed a temporary visa and submitted an I-589 asylum application to the immigration court on Feb. 25, 2008.
An IJ found the asylum application was knowingly frivolous and that Khaytekov made material misrepresentations, rendering him inadmissible and ineligible for adjustment of status; IJ denied an §1182(i) waiver.
The BIA affirmed the frivolous-application finding and denied motions to remand and to appoint a three-judge panel.
The Sixth Circuit initially declined relief on narrower grounds; the Supreme Court vacated and remanded after Niz-Chavez v. Garland.
On remand the Sixth Circuit held (1) the I-589 was properly “filed” when entered into the record despite no Part G signature, and (2) the written warning on the I-589 satisfies §1158(d)(4)(A)’s notice requirement.
Because Khaytekov conceded the application was frivolous, the court concluded he is permanently ineligible for immigration benefits (including cancellation of removal) under §1158(d)(6).

Issues

Issue	Khaytekov's Argument	Government's Argument	Held
Whether the asylum application was "filed/made" (vs. merely "lodged") absent a Part G signature	He only "lodged" the I-589 and did not "file" or "make" it until signing Part G, so §1158(d) penalties don’t apply	Filing occurs when the application is submitted into the court record (stamped received); Part G signature not required to ‘‘file’’	Application was filed when entered into the record; substantial evidence supports that finding
Whether the written warning on the I-589 satisfies §1158(d)(4)(A) or an additional verbal IJ warning is required	The statute requires a verbal in-court warning at the time of filing; the form alone is insufficient	The statutorily required notice may be given by the written warning on the I-589; no verbal warning is mandated	The written warning on the form satisfies the statute and Khaytekov received it
Effect of Niz-Chavez/Pereira on cancellation-of-removal eligibility (stop-time rule)	Niz-Chavez means no valid single NTA triggered stop-time, so Khaytekov met the 10-year presence requirement and is eligible for cancellation	Even if Niz-Chavez makes him satisfy the 10-year requirement, the frivolous-application bar under §1158(d)(6) independently makes him ineligible for benefits	Niz-Chavez gives him the 10-year presence, but he remains ineligible for cancellation because of the frivolous application
Whether substantial evidence supports that Khaytekov knew the consequences / received notice	He suggested counsel did not review the I-589 with him and he did not sign Part G	Attorney certification on the form, earlier testimony, and the form’s bolded warning show he received notice and knew the consequences	Substantial evidence supports that he received the written warning and had the requisite knowledge

Key Cases Cited

Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (single-document NTA required to trigger stop-time rule)
Pereira v. Sessions, 138 S. Ct. 2105 (2018) (notice-to-appear must contain time and place to stop the 10-year clock)
Yousif v. Lynch, 796 F.3d 622 (6th Cir. 2015) (de novo review of statutory interpretation; context on frivolous-application penalty)
Lazar v. Gonzales, 500 F.3d 469 (6th Cir. 2007) (substantial-evidence review of factual findings about frivolous applications)
Ndibu v. Lynch, 823 F.3d 229 (4th Cir. 2016) (I-589 written warning suffices for §1158(d)(4)(A))
Niang v. Holder, 762 F.3d 251 (2d Cir. 2014) (I-589 notice on form meets statute; secondary verbal warning not required)
Cheema v. Holder, 693 F.3d 1045 (9th Cir. 2012) (written I-589 warning satisfies notice requirement)
Ribas v. Mukasey, 545 F.3d 922 (10th Cir. 2008) (questioning effectiveness of later oral warnings; I-589 form notice sufficient)