72 F.4th 411
2d Cir.2023Background
- Syed Kalim Ud Din and Syed Arsalan Ud Din (Pakistani nationals) entered the U.S. on visas in May 2007, overstayed, and filed I-589 asylum applications in Sept. 2008 containing fabricated claims of persecution; each signed a form containing a printed "Frivolousness Warning."
- They later married U.S. citizens and sought adjustment of status (I-130/I-485). Counsel Sayyid prepared the asylum forms; the brothers later swore affidavits saying Sayyid fabricated the filings and that they could not read English. Sayyid submitted an affidavit saying he read the applications to them in Urdu.
- At immigration hearings the brothers admitted the asylum claims were fabricated; the IJ found they knowingly filed frivolous asylum applications and that they had received notice (relying on the I-589 warning and signatures), and alternatively denied adjustment of status as a matter of discretion.
- The BIA affirmed the IJ, citing Niang and agency precedent; the Ud Dins petitioned for review in the Second Circuit.
- The Second Circuit: (a) rejected the Ud Dins’ challenges to the IJ’s alternative discretionary denial and to the rule that untimely asylum applications can be found frivolous; but (b) granted limited review and remanded on whether the notice requirement for the §1158(d)(6) permanent-bar finding was actually satisfied because the presumption from signatures can be rebutted and it was unclear whether the IJ’s adverse credibility finding addressed notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to enter alternative discretionary denial after finding statutory ineligibility under §1158(d)(6) | IJ had no authority to deny adjustment in the alternative once statutory ineligibility was found | §1158(d)(6) governs ineligibility, not IJ jurisdiction; regulations permit alternative findings | Denied — IJ may deny adjustment in the alternative; §1158(d)(6) is not jurisdictional over IJ authority |
| Whether untimely asylum applications can be found frivolous | Fabrications in untimely I-589s are facially immaterial, so cannot support frivolousness | Filing an I-589 (timely or not) triggers the frivolousness inquiry; materiality judged by whether misstatements could influence adjudicator | Denied — untimely or withdrawn applications may still be found frivolous if any material element was knowingly fabricated |
| Whether signature on I-589 conclusively establishes notice of frivolousness consequences | Signatures cannot be treated as conclusive if petitioner credibly claims he did not receive or understand the warning | Signature gives rise to a presumption of notice (per Niang and 8 C.F.R. §1208.3/§208.3) | Mixed — signature creates a rebuttable presumption of notice; remand required because record unclear whether IJ’s adverse credibility finding addressed notice or only falsity |
| Reviewability of discretionary denial of adjustment of status | Discretionary denial is entwined with the frivolousness ruling and should be reviewable | Discretionary denials of §1255 relief are generally unreviewable by courts; factual findings are not reviewable | Denied — court lacks jurisdiction to review discretionary denial (except for legal or constitutional claims); factual findings underpinning discretionary denial not reviewable here |
Key Cases Cited
- Niang v. Holder, 762 F.3d 251 (2d Cir. 2014) (signature on Form I-589 can suffice to show notice of frivolousness warning where not contested)
- Mei Juan Zheng v. Mukasey, 514 F.3d 176 (2d Cir. 2008) (frivolousness finding requires preponderance showing of knowingly fabricated material elements)
- Ghazali v. Holder, 585 F.3d 289 (6th Cir. 2009) (untimely asylum applications may still be found frivolous; rejects Luciana)
- Luciana v. Attorney General, 502 F.3d 273 (3d Cir. 2007) (contrary view: falsities in time-barred applications cannot be "material")
- Kungys v. United States, 485 U.S. 759 (1988) (materiality test: misrepresentation is material if it could influence the decisionmaking body)
- Patel v. Garland, 142 S. Ct. 1614 (2022) (courts lack jurisdiction to review discretionary denials of adjustment when decision rests on factual findings)
- Santos-Zacaria v. Garland, 143 S. Ct. 1103 (2023) (exhaustion requirement is a claim-processing rule, not jurisdictional)
- Yuanliang Liu v. DOJ, 455 F.3d 106 (2d Cir. 2006) (frivolousness finding carries severe consequences, like permanent ineligibility for immigration benefits)