On Remand from the United States Supreme Court.
Petition for Review from the Board of Immigration Appeals;
No. A 094 219 176.
Decided and Filed: February 25, 2022
Before: SILER, COLE, and MURPHY, Circuit Judges.
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OPINION
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MURPHY, Circuit Judge. Often described as an immigration “death sentence,” a finding
that an immigrant “knowingly made a frivolous application for asylum” renders the immigrant
“permanently ineligible for any benefits under” our immigration laws. 8 U.S.C. § 1158(d)(6);
see, e.g., Yousif v. Lynch, 796 F.3d 622, 627 (6th Cir. 2015). Yet Congress understandably
refused to impose this serious penalty on asylum seekers who file frivolous applications unless
they receive adequate notice “of the consequences” of doing so. 8 U.S.C. § 1158(d)(4)(A),
(d)(6). To fulfill this notice mandate, the government has placed the required warning about
filing a frivolous asylum application in the standard application form itself.
Takhir Khaytekov received this written warning, but immigration judges also routinely
give another verbal warning in court. The judge in Khaytekov’s case did not give this secondary
warning, and Khaytekov argues that the failure to do so violated § 1158(d)’s notice requirement.
In an earlier opinion, we opted to reject Khaytekov’s claims for relief on narrower grounds that
avoided this statutory question. But the Supreme Court has since remanded the case for
reconsideration in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and we now must
confront it. We see nothing in § 1158(d)’s text that requires the additional warning that
Khaytekov requests. And we agree with every other circuit court that has considered the issue
by concluding that the warning in the application form itself satisfies the statute’s notice
requirement. Because Khaytekov does not dispute that he filed a frivolous asylum application,
he is permanently barred from obtaining any immigration “benefits.” 8 U.S.C. § 1158(d)(6). So
our judgment remains the same after Niz-Chavez: we dismiss Khaytekov’s petition for review in
part and deny it in part. |