SYED KALIM UD DIN & SYED ARSALAN UD DIN v. MERRICK B. GARLAND, United States Attorney General
No. 21-6586
United States Court of Appeals for the Second Circuit
DECIDED: JUNE 30, 2023
AUGUST TERM 2022. ARGUED: JANUARY 18, 2023
Before: WALKER, RAGGI, and PARK, Circuit Judges.
Pakistani nationals and brothers Syed Kalim Ud Din and Syed Arsalan Ud Din petition for review of a Board of Immigration Appeals decision upholding orders denying them adjustment of status and directing their removal from the United States. The Ud Dins argue that the agency erred in finding them ineligible for adjustment of status based on their earlier filing of frivolous, i.e., deliberately and materially false, asylum applications, see
PETITION DENIED IN PART, GRANTED IN PART, AND REMANDED.
MICHAEL Z. GOLDMAN, Law Offices of Michael Z. Goldman, New York, NY, for Petitioners.
EDWARD C. DURANT (Brian Boynton, Jessica E. Burns, on the brief), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
REENA RAGGI, Circuit Judge:
Pakistani nationals and brothers Syed Kalim Ud Din (“Kalim“) and Syed Arsalan Ud Din (“Arsalan“) petition this court for review of a Board of Immigration Appeals (“BIA“) decision upholding an immigration judge‘s (“IJ“) orders denying the Ud Dins adjustment of status and directing their removal from the United States. See In re Syed Kalim Ud Din, Syed Arsalan Ud Din, Nos. A 088 428 002, A 088 428 003 (B.I.A. Oct. 12, 2021), aff‘g Nos. A 088 428 002, A 088 428 003 (Immigr. Ct. N.Y.C. Oct. 4, 2018). The agency found the brothers ineligible for adjustment of status based on their earlier filing of frivolous asylum applications, i.e., applications based on knowingly false, material misstatements, see
We deny the Ud Dins’ petition to review their first and third challenges to the agency‘s decision as those arguments are meritless. We must, however, grant review of the Ud Dins’ second argument because, while the propriety of removing the brothers from the United States is not in doubt, a question arises as to whether, following removal, they are permanently barred from reentering the United States. Such a bar requires a finding not only that the Ud Dins’ asylum applications contained knowingly fabricated material elements, but also that the Ud Dins received adequate notice about the consequences of filing frivolous applications. In general, an alien‘s signature on an asylum application form warning of the consequences of filing a frivolous application gives rise to a rebuttable presumption of adequate notice. See
BACKGROUND
I. Asylum Applications
In May 2007, the Ud Din brothers lawfully entered the United States from their native Pakistan on nonimmigrant visas valid through November 2007. The Ud Dins overstayed their visas, prompting the Department of Homeland Security (“DHS“), in March 2008, to charge the brothers as removable and to serve them with notices to appear. See
In September 2008, the Ud Dins’ retained counsel, Ali Faez Sayyid, filed Form I-589 applications for the brothers to be granted asylum, withholding of removal, and relief under the Convention Against Torture (hereafter, “asylum applications“). Each application told the same story. The brothers professed to be Shia Muslims and members of a political party (the Muttahida Qaumi Movement (“MQM“)) who, on several occasions in 2006 and early 2007, were beaten, shot at, wrongfully arrested, and tortured by religious and political rivals.
Each Ud Din brother signed his I-589 asylum application under oath. On the signature page of each form was printed the following warning in bold font:
WARNING: Applicants who are in the United States illegally are subject to removal if their asylum or withholding claims are not granted by an asylum officer or an immigration judge. Any information provided in completing this application may be used as a basis for the institution of, or as evidence in, removal proceedings even if the application is later withdrawn. Applicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act. You may not avoid a frivolous finding simply because someone advised you to provide false information in your asylum application.
Admin. R. 293, 1476 (“Frivolousness Warning“) (emphasis added).
II. Applications for Adjustment of Status
In 2010, before any ruling was rendered on their asylum applications, the Ud Dins married United States citizens. Attorney Sayyid then pursued another route to help the brothers avoid removal: he prepared and filed I-130 forms for each brother‘s spouse to petition for her husband to remain in the United States. The petition for Kalim was granted in 2010; the petition for Arsalan was granted in 2011. In 2010, Sayyid also prepared and filed an I-485 form for Kalim to register as a permanent resident or to adjust his status. This request was denied in July 2011 based on pending removal proceedings. Dissatisfied with Sayyid‘s efforts on their behalf, in 2012, the Ud Dins replaced him with attorney Robert Murtha, Jr., who prepared and filed a Form I-485 application for Arsalan and re-submitted such an application for Kalim. In 2013, Murtha asked the immigration court to terminate the brothers’ removal proceedings and to remand their cases to the United States Citizenship and Immigration Services (“USCIS“) for consideration of their Form I-485 applications. DHS opposed this request, and, in June 2014, the immigration court held a hearing on the Ud Dins’ consolidated removal proceedings.
At that hearing, DHS raised questions about the veracity of the Ud Dins’ asylum applications. Directed to respond, Murtha submitted a letter in December 2014, which stated that the Ud Dins’ asylum applications had been “prepared and filed” by attorney Sayyid, who “concocted” their contents. Id. at 952, 959. Murtha acknowledged that the brothers were “never” MQM members and did not know much about that movement. Id. While acknowledging that the brothers had signed their asylum applications, Murtha explained that they “had not—could not—read [them] for lack of English.” Id. Accompanying Murtha‘s letter were sworn affidavits from the Ud Dins admitting that their asylum applications had been fabricated. They confirmed Sayyid‘s preparation and filing of the applications and their own inabilities to read English. Each brother professed that Sayyid had told him, “No problem—just sign. I‘ll take care of everything.” Id. at 953, 960. The Ud Dins reported that their May 2007 trip to the United States was the most recent of several that they had made to this country. Far from looking to escape religious and political persecution, their
In March 2015, DHS formally opposed the Ud Dins’ motion to remand their cases to the USCIS. Disputing the brothers’ professed ignorance of false statements in their asylum applications, DHS submitted an affirmation from attorney Sayyid stating that he had “reviewed/explained and read the contents” of the filed applications and attachments “to the [Ud Dins] in ‘Urdu,‘” which is “the language they fully understand.” Id. at 459. DHS also noted that although the Ud Dins claimed that Sayyid had provided ineffective assistance of counsel in submitting their asylum applications, they had not notified Sayyid of their complaints or filed disciplinary actions against him as required by Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988). See Debeatham v. Holder, 602 F.3d 481, 484–85 (2d Cir. 2010) (approving Lozada requirements).
In August 2015, attorney Murtha provided the immigration court with evidence that the Ud Dins had recently filed complaints about Sayyid with the California and Virginia Bars, of which Sayyid was a member.1 The Ud Dins also submitted affidavits reiterating that Sayyid had fabricated their asylum applications and denying that Sayyid had explained their applications to them in Urdu.
Thereafter, and for reasons not apparent on the record, removal proceedings against the Ud Dins lay dormant until 2018.
III. Resumed Proceedings Before the IJ
By April 2018, when the Ud Dins’ removal proceedings resumed before a new IJ, the brothers had withdrawn their asylum applications with prejudice and were seeking only adjustment of status. DHS acknowledged that the Ud Dins were prima facie eligible for adjustment based on their wives’ approved Form I-130 applications. Nevertheless, DHS opposed adjustment, in relevant part because the Ud Dins had “submitted . . . fraudulent application[s]” for asylum. Admin. R. 132. The IJ stated his understanding that the Ud Dins’ signatures on their Form I-589 asylum applications gave rise to a “rebuttable presumption” that the Ud Dins had knowledge of the applications’ contents. Id. at 133. The IJ also confirmed with the parties that the immigration court had not itself given the Ud Dins “oral or written frivolous advisals.” Id. at 155. The case was then continued until August.
A. The Hearing
At a hearing conducted in August 2018, the Ud Dins each testified through an Urdu interpreter. Their testimony was not always consistent.
At certain points, Kalim appeared to acknowledge that, before his asylum application was filed, attorney Sayyid had told him that it would be based on Kalim‘s alleged membership in MQM. At other times, Kalim claimed it was only years later—when he filed for relief from removal based on his marriage to a United States citizen—that he came to understand the falsity of his asylum application. While acknowledging that Sayyid had communicated with him in Urdu, Kalim denied that Sayyid ever reviewed the application with him in that language before filing it.
Arsalan similarly testified that Sayyid had not reviewed his asylum application with him in Urdu before he signed it. Instead, Sayyid had asked Arsalan to sign the asylum application with “quite a few blank papers,” telling Arsalan that he
B. The IJ‘s Decision
In an oral ruling on October 4, 2018, the IJ denied the Ud Dins’ requests for adjustment of status and ordered them removed to Pakistan. In so ruling, the IJ identified two issues: (1) whether the Ud Dins had “filed a frivolous asylum application,” and (2) if not, “whether this court should exercise discretion granting [them] adjustment of status.” Id. at 66–67. The IJ answered the first question in the affirmative and, in the alternative, answered the second question in the negative.
1. Frivolousness Finding
Observing that DHS bore the burden to demonstrate that an asylum application is “frivolous,” id. at 68, the IJ identified four factors that needed to be satisfied:
(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). The IJ determined that factors (3) and (4) were not at issue because the Ud Dins conceded that the basis for “both asylum applications was deliberately fabricated” and they had been able to explain these falsehoods in testimony before the IJ. Admin. R. 68–69.
Turning to factor (1), the IJ construed this court‘s decision in Niang v. Holder, 762 F.3d 251, to hold that “the written warning contained in the form I-589 application . . . [p]rovide[s] adequate notice sufficient to satisfy” that factor. Admin. R. 69 (internal quotation marks omitted) (citing Pavlov v. Holder, 697 F.3d 616 (7th Cir. 2012), for same proposition). Because the Ud Dins admitted signing their Form I-589s, which contained the Frivolousness Warning, the IJ concluded that they “had notice[] of the consequences of filing a frivolous application.” Id.
As to factor (2), i.e., whether the Ud Dins knowingly filed frivolous asylum applications, the IJ discredited the Ud Dins’ testimony denying such knowledge and “g[a]ve weight to” attorney Sayyid‘s affirmation that he had reviewed the completed Form I-589s with the brothers in Urdu before they signed them. Id. at 71.
Having thus found the Ud Dins to have knowingly made frivolous applications for asylum and to have received notice of the consequences of doing so, the IJ concluded that they were “statutorily ineligible for adjustment of status.” Id. at 74 (citing
2. Discretionary Determination
The IJ further ruled that, even if the Ud Dins had been eligible for adjustment of status, he would exercise his discretion to deny such relief. He explained that although
IV. BIA Dismisses the Appeal
On appeal to the BIA, the Ud Dins challenged the IJ‘s frivolousness finding, arguing, as relevant here, that (1) the notice requirement had not been satisfied because they had not understood the Frivolousness Warning on their asylum applications; and, in any event, (2) their applications could not have been frivolous as a matter of law because they were untimely. In response, DHS both disputed the Ud Dins’ frivolousness arguments and submitted that the brothers’ failure to challenge the IJ‘s alternative, discretionary denial of adjustment of status rendered harmless any error in the IJ‘s frivolousness analysis.
In a non-precedential decision dated October 12, 2021, the BIA dismissed the Ud Dins’ appeal, “adopt[ing] and affirm[ing] the entirety of the Immigration Judge‘s decision for the reasons stated therein.” Id. at 2. Specifically citing Niang v. Holder, 762 F.3d at 254, the BIA held that the IJ “reasonably determined that the respondents received the required notice of the consequences of filing a frivolous asylum application based on the express written warnings contained in the I-589 application.” Admin. R. 3. As for the argument that the frivolousness bar was inapplicable as a matter of law to untimely asylum applications, the BIA ruled it “foreclosed” by agency precedent. Id. (citing Matter of M-S-B-, 26 I. & N. Dec. 872 (B.I.A. 2016); Matter of X-M-C-, 25 I. & N. Dec. 322 (B.I.A. 2010)). Finally, the BIA ruled that the IJ had “properly denied adjustment as a matter of discretion, in the alternative,” based on “the seriousness of the misrepresentations made, which outweighed the equities presented by the [Ud Dins], including family and business ties in the United States.” Id.
The Ud Dins timely petitioned this court for review.
DISCUSSION
Because the Ud Dins “petition[] for review of a BIA decision that affirms an IJ decision without rejecting any part of its reasoning, this court properly considers both decisions in deciding whether to grant the requested review.” Likai Gao v. Barr, 968 F.3d 137, 144 (2d Cir. 2020); see Scarlett v. Barr, 957 F.3d 316, 326 (2d Cir. 2020) (“To the extent the BIA adopts the IJ‘s reasoning in denying relief, we review the two decisions in tandem.” (internal quotation marks omitted)). “We review the agency‘s factual findings . . . under the substantial evidence standard, treating them as ‘conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.‘” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008) (quoting
Following these principles here, we deny the Ud Dins’ petition for review of the agency‘s decision to deny them adjustment of status as a matter of discretion. Respondent submits that such a conclusion makes it unnecessary to review the agency‘s decision that the Ud Dins’ earlier filing of frivolous asylum applications made them ineligible for adjustment of status. We disagree because a denial based on frivolousness results in a lifetime, unwaivable bar on reentry, whereas a discretionary denial results in a lesser, waivable bar. We also decline to review the Ud Dins’ claim that their applications could not be frivolous as a matter of law because they were untimely. But because we cannot discern from the present record whether the IJ made factual findings sufficient to support the notice requirement for frivolousness, we grant the petition for the limited purpose of remanding this case to the agency for an explicit ruling on this single point.
I. Discretionary Denial of Adjustment of Status
In challenging the agency‘s decision to deny them adjustment of status as a matter of discretion, the Ud Dins confront two preliminary hurdles: exhaustion and waiver. These merit only brief discussion because, even if the Ud Dins clear these hurdles, their argument that the IJ lacked authority to make a discretionary ruling in the alternative is meritless, and their challenge to the exercise of that discretion is beyond this court‘s jurisdiction to review.
A. Exhaustion and Waiver
Respondent submits that the Ud Dins’ failure to challenge the IJ‘s discretionary denial of adjustment of status on appeal to the BIA precludes review of that determination in this court. The argument finds support in
The Ud Dins, however, also did not challenge the agency‘s discretionary denial of adjustment in their counseled opening brief to this court; rather, they questioned that alternative ground for decision only in their reply brief. We generally deem such a belated argument waived. See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mex., S.A. de C.V., 412 F.3d 418, 428 (2d Cir. 2005) (“[A]rguments not made in an appellant‘s opening brief are waived even if the appellant . . . raised them in a reply brief.“). While we “have discretion” to review waived arguments “if manifest injustice would otherwise result,” id., the Ud Dins fail to demonstrate that such injustice would result here. No matter because, even if we were to exercise our discretion in favor of the Ud Dins, their challenges to the agency‘s discretionary denial are either meritless or unreviewable.
B. Agency Authority To Deny Adjustment of Status as a Matter of Discretion in the Alternative to Finding the Ud Dins Ineligible for Such Relief
The Ud Dins argue that once the IJ found them statutorily ineligible for adjustment of status based on their filing of frivolous asylum applications, the IJ had “no authority” alternatively to deny them such relief as a matter of discretion. Reply Br. 3. In support, they cite
If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.
Id. (emphasis added). We are not persuaded.
While the word “shall” when used in laws and regulations generally expresses a mandate, see WEBSTER‘S THIRD NEW INT‘L DICTIONARY 2085 (Philip Babcock Gove ed. 1986); Maine Cmty. Health Options v. United States, 140 S. Ct. 1308, 1320 (2020) (“The first sign that the statute imposed an obligation is its mandatory language: ‘shall.‘“),
That conclusion is reinforced by Supreme Court precedent instructing that,
While we thus need not look beyond statutory text and context to reject the Ud Dins’ jurisdictional challenge, we note that the conclusion also finds support in a provision of the law‘s implementing regulation. That regulation,
Thus, the Ud Dins’ challenge to the agency‘s authority to deny adjustment of status as a matter of discretion as an alternative to denying such relief based on ineligibility is without merit.
C. Lack of Judicial Authority To Review Discretionary Denial of Adjustment of Status
The Ud Dins argue that even if the IJ was authorized to make a discretionary determination in the alternative, his discretionary denial decision warrants review. That argument is defeated by
Here, the agency‘s ineligibility and discretionary denial decisions are both based on a finding that the Ud Dins knowingly submitted materially false asylum applications. That, however, is a factual finding for which the Ud Dins do not—and cannot—seek review in this court. See Patel v. Garland, 142 S. Ct. at 1619. To the extent that, in this petition for review, the Ud Dins argue that the agency‘s notice finding was infected by legal error—a point we discuss further infra—that challenge is simply irrelevant to the agency‘s discretionary denial decision. Thus, the Ud Dins’ challenge to the agency‘s discretionary denial decision, far from being “intertwined” with their legal challenge to the agency‘s ineligibility determination, is distinct from it. In these circumstances, accepting the Ud Dins’ contrary argument would approve judicial review of agency fact findings, even in the absence of any claim that those findings were a product of legal error. “Such legal alchemy would defeat” the jurisdictional distinctions that Congress has drawn. Guyadin v. Gonzales, 449 F.3d 465, 468 (2d Cir. 2006).
Accordingly, we deny the Ud Dins’ petition to review the discretionary denial part of their challenge to removal.
II. Ineligibility Based on Frivolousness Determination
The Ud Dins submit that the IJ erred in finding that their filing of frivolous asylum applications made them ineligible for adjustment of status pursuant to
A. Mootness
As respondent correctly observes, our decision not to review the agency‘s discretionary denial of adjustment of status
In sum, because the Ud Dins face more severe consequences upon removal based on the IJ‘s frivolousness finding, the brothers’ challenges to that finding are not moot. That conclusion finds implicit support in Yuanliang Liu v. DOJ, 455 F.3d at 108, in which an alien facing removal sought review of both the IJ‘s (1) adverse credibility determination, and (2) frivolousness finding. This court denied the petition as to (1), but granted it as to (2), vacating and remanding the IJ‘s frivolousness finding. See id. at 118. Our sister circuits have also granted petitions to review frivolousness findings at the same time that they have denied review of other issues informing removal. See, e.g., Ning Wang v. Lynch, 845 F.3d 299, 300 (7th Cir. 2017) (denying petition “with regard to the denial of [petitioner‘s] applications for immigration relief” but granting petition “with regard to the finding of frivolousness“); Limbeya v. Holder, 764 F.3d 894, 896 (8th Cir. 2014) (leaving intact removal order but “remand[ing] for further proceedings on the issue of frivolousness“); Mingkid v. U.S. Att‘y Gen., 468 F.3d 763, 768–69 (11th Cir. 2006) (rejecting mootness argument because vacating frivolousness finding “incontrovertibly leaves [petitioners] in better position than they would be in without our relief“); Farah v. Ashcroft, 348 F.3d 1153, 1154 (9th Cir. 2003) (affirming “order of removal but vacat[ing] the order of permanent ineligibility for immigration benefits“).
Thus, we proceed to address the Ud Dins’ challenges to the IJ‘s frivolousness finding.
B. Finding Untimely Asylum Applications Frivolous
Subject to certain exceptions not invoked here, an application for asylum in the United States generally must be “filed within 1 year” of an alien‘s arrival in this country.
The Ud Dins argue that because their applications were untimely, the misstatements they contained were not material
applications could not have been frivolous. The implementing regulation for
[A]n applicant is subject to [
§ 1158(d)(6) ] only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application. For purposes of this section, an asylum application is frivolous if any of its material elements is deliberately fabricated. Such finding shall only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim. For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking withholding of removal.
In urging a negative answer to that question, the Ud Dins rely on Luciana v. Attorney General of the United States, in which the Third Circuit concluded, as a matter of law, that an alien‘s false statements could not be “material” to an asylum application that was untimely filed. 502 F.3d 273, 280 (3d Cir. 2007). That court reasoned that when an asylum application “ha[s] to be rejected as time-barred,” “[e]vidence going to the merits of the application,” even if knowingly false, is “not material” because it is of “no consequence, no matter how persuasive or compelling it might have been.” Id. The court cited no supporting authority for its conclusion, pointing instead to “the bare force of logic,” and its desire to ensure a “just” outcome. Id. at 283.4
Beginning with text, we note that
Doing so would be particularly inapt here, where the agency itself has held that “the only action required to trigger a frivolousness inquiry is the filing of an asylum application,” Matter of X-M-C-, 25 I. & N. Dec. at 324; and where regulations specifically authorize, and precedent and practice approve, IJs “issu[ing] orders in the alternative or in combination,”
In Mei Juan Zheng v. Mukasey, 514 F.3d at 181-82, this court considered whether a frivolousness finding under
Any different conclusion risks the perverse result of treating untimely asylum applicants better than timely applicants when both have filed frivolous asylum applications. As Judge Sutton explained in Ghazali,
Why should [petitioner], who filed an untimely frivolous application, be treated better than an applicant who filed a timely frivolous application? Under [petitioner]‘s theory, [the former] would be free to file another application while the other applicant would not be, even though the only difference between them is that the second applicant followed the Act‘s timeliness requirements. If [petitioner] is right, no good deed goes unpunished. If he is wrong, as we think he is, he gets his just deserts—at least relative to those who file timely, but fabricated, applications.
Ghazali v. Holder, 585 F.3d at 294-95 (emphasis in original); see also Matter of X-M-C-, 25 I. & N. Dec. at 325-26 (making same point in context of withdrawn application); accord Mei Juan Zheng v. Holder, 672 F.3d at 185 (same); cf. Bittner v. United States, 143 S. Ct. 713, 723-24 (2023) (declining to interpret statute such that “those who willfully violate the law may face lower penalties than those who violate the law nonwillfully” (emphases in original)).
Here, the IJ found that the Ud Dins knew that attorney Sayyid had filed signed asylum applications on their behalf containing false claims of persecution. Such claims would naturally tend to influence an IJ in deciding whether to grant asylum and, thus, are properly deemed material. See
In sum, text, context, and precedent all support the conclusion that any filed asylum application containing knowingly false, material statements can be deemed frivolous,
C. Notice of Consequences
The Ud Dins argue that the IJ erred as a matter of law in finding that they received the notice of consequences required for a frivolousness determination, thereby rendering them ineligible for adjustment of status. See
In finding adequate notice, the IJ relied on Niang v. Holder, in which this court held that the Frivolousness Warning printed on Form I-589 asylum applications was sufficient to provide the requisite notice. See 762 F.3d at 254. Sister circuits agree. See Khaytekov v. Garland, 26 F.4th 751, 758-60 (6th Cir. 2022), cert. denied, 143 S. Ct. 1061 (2023); Ndibu v. Lynch, 823 F.3d 229, 234-35 (4th Cir. 2016); Ruga v. U.S. Att‘y Gen., 757 F.3d 1193, 1196-97 (11th Cir. 2014); Pavlov v. Holder, 697 F.3d at 618 [7th Cir.]; Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012); Ribas v. Mukasey, 545 F.3d 922, 929-30 (10th Cir. 2008).
Respondent argues that the IJ would have been correct in concluding from Niang that the Ud Dins’ signatures on their Form I-589 applications were “conclusive of notice” and thus “dispositive” evidence that the notice requirement was satisfied. Oral Arg. Tr. 11:18-23, 19:2-3. If that is indeed how the IJ (and BIA) construed Niang—a point on which the record is not clear—that would be error. Thus, a remand is necessary to ensure that the notice determination required for a finding of frivolousness is made in accordance with applicable law.
While in Niang, the petitioner‘s signature on his Form I-589 was held sufficient to demonstrate notice, the opinion is careful to note that, in that case, petitioner did not assert “that he did not receive or was unable to understand the warning that appears on the signature page of his asylum application form.” Niang v. Holder, 762 F.3d at 254 n.1. This qualification signals that an alien‘s signature on a Form I-589 gives rise to a presumption of notice. Such an interpretation comports with
Indeed, implicit in the term “presumption” is the possibility for rebuttal. See, e.g., Flemming v. Matteson, 26 F.4th 1136, 1140 (9th Cir. 2022) (observing that “all presumptions[] can be rebutted“); Illinois Tool Works, Inc. v. Grip-Pak, Inc., 906 F.2d 679, 682 (Fed. Cir. 1990) (recognizing “all presumptions[ to be] rebuttable“); Gurley v. Wilson, 239 F.2d 957, 959 (D.C. Cir. 1956) (“After all, presumptions are rebuttable.“); 9 WIGMORE ON EVIDENCE § 2491, at 305 (James H. Chadbourn rev. 1981) (explaining that “presumption . . . invoke[s] a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent” (emphasis in original)).7
Here, the Ud Dins admit signing their Form I-589 asylum applications. Thus, it was entirely appropriate for the IJ to presume that they were aware of and understood the Frivolousness Warnings contained therein. See
But, as we detailed in the Background section of this opinion, the Ud Dins did come forward with evidence that challenged the presumption of notice established by their signatures on their Form I-589 applications, specifically, their sworn affidavits and testimony maintaining that the forms had never been translated for them. In response, DHS offered an affirmation from attorney Sayyid, stating that he had “read the contents and the attachments” of the Ud Dins’ Form I-589 applications to the brothers in Urdu. Admin. R.
As to notice, a concern arises because the record indicates that the IJ made this adverse credibility determination in the context of finding that the Ud Dins had knowingly filed false asylum applications. That finding is not at issue here.8 What cannot confidently be determined on the present record is whether the IJ‘s adverse credibility determination also pertained to Sayyid‘s reading the Form I-589s’ Frivolousness Warnings to the Ud Dins. An affirmative answer is not obvious because the knowing and material falsehoods stated in the forms are distinct from the warning given therein. Might Sayyid have read the former to the Ud Dins because it was information that he had added to the forms on the brothers’ behalf, but not have read the latter, which required no information to be supplied by the brothers or their attorney? We do not know. Sayyid was not available for examination at the brothers’ hearing. More to the point, we do not know how the IJ answered the question. Thus, we will not assume that the IJ‘s adverse credibility finding, made in expressly determining knowing falsehood, was also intended to support an unexplained finding of notice, particularly where respondent here mistakenly maintains that it would have been permissible for the IJ to have construed Niang to hold the Ud Dins’ signatures on their asylum applications determinative of notice. See supra at 27; see also Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007) (declining to assume that IJ made findings ”sub silentio merely because she considered evidence relevant to that question for another purpose“). That conclusion is reinforced by the severity of the consequences attending a frivolousness determination. See Limbeya v. Holder, 764 F.3d at 901 (stating that “clear explanation from agency is particularly important” when making frivolousness determination because of attending “serious consequences” (internal quotation marks omitted)); see also Yuanliang Liu v. DOJ, 455 F.3d at 117.
Accordingly, we grant the Ud Dins’ petition for review only as it pertains to the notice requirement for frivolousness, and we remand the case to the agency for further proceedings limited to that issue. If the IJ, in his original ruling, in fact found the Form I-589 Frivolousness Warning to have been read to the Ud Dins in Urdu so that they did understand it and, on that basis, found the notice requirement for a frivolousness finding satisfied, he can clarify that on remand. On the other hand, if the IJ misread our decision in Niang to warrant finding notice based simply on the Ud Dins’ signatures on their Form I-589s, without need to consider the claim that they had not received translations of—and so did not understand—anything in those forms, then the IJ should reconsider the notice requirement consistent with this opinion and, based on his finding, determine whether the Ud Dins, upon removal, are permanently barred from reentering the United States. See, e.g., Mufied v. Mukasey, 508 F.3d at 91-92 (stating that remand to agency generally warranted for additional factfinding).
CONCLUSION
To summarize, we conclude as follows,
- The agency‘s finding that the Ud Dins were ineligible for adjustment of status did not deprive it of the authority alternatively to deny the
Ud Dins adjustment of status as a matter of discretion. - The Ud Dins’ challenge to the agency‘s frivolousness finding is not moot because a determination that they are ineligible for adjustment of status on that basis triggers a stricter reentry bar following removal than if adjustment is denied as a matter of discretion.
- The agency may make a frivolousness finding as to an untimely filed asylum application.
- An alien‘s signature on an asylum application gives rise to a rebuttable presumption that the notice requirement for frivolousness has been satisfied.
Accordingly,
- We DENY the Ud Dins’ petition for review of their removal orders insofar as they challenge the agency‘s (a) discretionary decision to deny their applications for adjustment of status, and (b) frivolousness determination as to their untimely filed asylum applications.
- We GRANT the Ud Dins’ petition for review of their removal orders insofar as they challenge the agency‘s finding that they received the notice required to hold them ineligible for adjustment of status based on the filing of frivolous asylum applications.
- We REMAND for the limited purpose of allowing the agency to make an express finding as to notice consistent with principles stated in this opinion and, based on that finding, to specify the scope of the reentry bar that will attend the Ud Dins’ removal.