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NDIBU v. LYNCH, NO. 14-2250

Decided: May 19, 2016

The Fourth Circuit denied Ndibu’s petition for review of a final order of removal issued by the Board of Immigration Appeals (“BIA”) which affirmed the immigration judge’s conclusion that Ndibu filed a frivolous asylum application and was therefore ineligible for adjustment of status.

Ndibu, a native and citizen of the Democratic Republic of the Congo (“DRC”), entered the United States using a Canadian passport that did not belong to him.  After evading the attention of immigration officials for nearly three years, Ndibu filed an affirmative application for asylum.  Ndibu claimed that he feared persecution on account of his political opinion were he to return to the Congo.  The Department of Homeland Security (“DHS”) placed Ndibu in removal proceedings.  The immigration judge concluded that Ndibu failed to demonstrate that he filed his asylum claim within one year of entering the United States and failed to establish a clear probability of persecution.  The judge denied his claim for withholding of removal.  Ndibu appealed, and the BIA affirmed the denial of asylum and remanded the matter for a more complete decision as to the withholding claim.  During the proceedings on remand, Ndibu applied for an adjustment of status on the basis of his marriage to a United States citizen.  Ndibu admitted that his previous asylum claim was false, but argued that despite having made a mistake in agreeing to submit a false asylum claim, he had otherwise lived as a law-abiding member of the community and that he was worthy of a fraud waiver to enable him to adjust his status and remain in the United States with his family.  The immigration judge issued an order denying Ndibu’s applications for a waiver of inadmissibility and an adjustment of status.  The BIA dismissed Ndibu’s subsequent appeal.

An alien who has knowingly made a frivolous application for asylum is permanently ineligible for immigration benefits.  8 U.S.C. § 1158(d)(6).  Notice is a prerequisite to a finding of frivolousness; before an application for asylum is declared frivolous, the alien seeking asylum must be given the statutorily-required notice.  While Ndibu acknowledged that the asylum application form set forth a warning about the consequences of filing a frivolous asylum application, he argued that this printed notice was inadequate and the law requires the immigration judge to provide an oral warning as well.  The Fourth Circuit held that the warning on the asylum form clearly satisfied the basic requirements of advising asylum applicants that they will be permanently ineligible for any benefits under the INA if they knowingly file a frivolous application.  There is no requirement that the immigration judge advise an alien—orally or in writing—of the consequences of knowingly filing a frivolous application.

Accordingly, the Court denied Ndibu’s petition for review.

Full Opinion

Katie E. Lowery