Niang v. Holder, Docket No. 11–4156–ag.

Citation762 F.3d 251
Decision Date13 August 2014
Docket NumberDocket No. 11–4156–ag.
PartiesGade NIANG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

762 F.3d 251

Gade NIANG, Petitioner,
v.
Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Docket No. 11–4156–ag.

United States Court of Appeals,
Second Circuit.

Argued: Nov. 7, 2013.
Decided: Aug. 13, 2014.


[762 F.3d 252]


H. Raymond Fasano, Youman, Madeo & Fasano, LLP, New York, N.Y., for Petitioner.

Yamileth G. Davila, Trial Attorney (Stuart F. Delery, Assistant Attorney General, Civil Division; William C. Peachey, Assistant Director; Ada E. Bosque, Trial Attorney, on the brief), Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for Respondent.


Before: SACK, HALL, LIVINGSTON, Circuit Judges.

PER CURIAM:

Petitioner Gade Niang, a native and citizen of Senegal, seeks review of a decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge's (“IJ”) denial of his application for adjustment of status based on a finding that Niang was ineligible for all relief for having filed a frivolous asylum application. Because Niang received adequate notice of the consequences of filing a frivolous application through the written warning on the asylum application, we conclude that the agency did not err in denying his adjustment application, and we deny the petition for review.

Background

Gade Niang, a native and citizen of Senegal, entered the United States in 2002 as a nonimmigrant visitor. In 2005, Niang applied for asylum, withholding of removal and relief under the Convention Against Torture, asserting that he was from the Ivory Coast where he had been persecuted on account of his ethnicity and his political opinion. During a subsequent interview with an asylum officer, Niang signed a declaration stating that he knew the contents of his application and attesting to their truth. The asylum officer referred Niang's application to an IJ on the suspicion that Niang was not Ivorian, and Niang was placed in removal proceedings.

Niang appeared before an IJ in 2006, and, through counsel, confirmed the truth, accuracy, and completeness of the contents of his asylum application and contested the Government's allegation that he was a native and citizen of Senegal. In light of evidence demonstrating that Niang was

[762 F.3d 253]

Senegalese, the IJ instructed counsel to inform Niang of the risks of filing a frivolous, or fraudulent, asylum application. Niang initially proceeded with but later withdrew his application, admitting he was Senegalese. He then applied for adjustment of status based on an approved I–130 immigrant visa petition filed on his behalf by his wife, a United States citizen. Following a merits hearing, the IJ concluded that Niang was barred from any immigration benefits because he knowingly filed a frivolous asylum application. The IJ consequently denied adjustment of status and ordered Niang removed to Senegal. On appeal, Niang argued that he was not given adequate notice as required by 8 U.S.C. § 1158(d). In a September 2011 decision, the BIA rejected this argument, pointing out that Niang received both written notice through his asylum application and oral warnings through his attorney. The BIA further agreed with the IJ that Niang had knowingly filed a frivolous application and dismissed the appeal. Niang now petitions this Court for review of the BIA's decision.

Discussion

We review the agency's factual findings to determine whether they are supported by substantial evidence and its conclusions of law de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Because the BIA adopted and supplemented the decision of the IJ, we have reviewed the decision of the IJ as supplemented by the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005).

“A person who makes an application for asylum determined to be ‘frivolous,’ or deliberately and materially false, is subject to a grave penalty: permanent ineligibility for most forms of relief under the...

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  • Ud Din v. Garland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 30, 2023
    ...filing a frivolous application gives rise to a rebuttable presumption of adequate notice. See 8 C.F.R. § 1208.3(c)(2); Niang v. Holder, 762 F.3d 251, 254 (2d Cir. 2014). To the extent the Ud Dins attempted to rebut a presumption through their own sworn statements, it is not clear on the pre......
  • Chen v. Holder
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 5, 2014
    ...only to determine whether they are “supported by substantial evidence,” but we review its “conclusions of law de novo.” Niang v. Holder, 762 F.3d 251, 253 (2d Cir.2014). Under the substantial evidence standard, the agency's factual findings are “conclusive unless any reasonable adjudicator ......
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 5, 2014
    ...only to determine whether they are “supported by substantial evidence,” but we review its “conclusions of law de novo. ” Niang v. Holder, 762 F.3d 251, 253 (2d Cir.2014). Under the substantial evidence standard, the agency's factual findings are “conclusive unless any reasonable adjudicator......
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 5, 2014
    ...only to determine whether they are “supported by substantial evidence,” but we review its “conclusions of law de novo.” Niang v. Holder, 762 F.3d 251, 253 (2d Cir.2014). Under the substantial evidence standard, the agency's factual findings are “conclusive unless any reasonable adjudicator ......
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