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Niang v. Holder

United States Court of Appeals, Second Circuit

August 13, 2014

GADE NIANG, Petitioner,

Argued November 7, 2013

As Amended November 5, 2014.

Petitioner seeks review of a decision of the Board of Immigration Appeals affirming an immigration judge's denial of his application for adjustment of status based on a finding that Niang filed a frivolous asylum application. Because the written warning in that application provided Niang adequate notice of the consequences of filing a frivolous application, he was ineligible for all relief from removal. Therefore, we conclude that the agency did not err in denying adjustment of status, and we DENY Niang's petition.

H. RAYMOND FASANO, Youman, Madeo & Fasano, LLP, New York, NY, 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.

OPINION

Page 252

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

Page 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. ยง 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 ...


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