Gao v. Lynch , 622 F. App'x 91 ( 2015 )

13-47
Gao v. Lynch
BIA
Zagzoug, IJ
A200 745 364
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of December, two thousand fifteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
RONG GAO,
Petitioner,
v. 13-47
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Michael J. Campise, New York, N.Y.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Frances W. Fraser, Senior
Litigation Counsel; Jacob A.
Bashyrov, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Rong Gao, a native and citizen of China, seeks review
of a December 10, 2012, decision of the BIA affirming the
June 15, 2011, decision of an Immigration Judge (“IJ”) that
she had filed a frivolous asylum application. In re Rong
Gao, No. A200 745 364 (B.I.A. Dec. 10, 2012), aff’g No. A200
745 364 (Immig. Ct. N.Y. City Jun. 15, 2011). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Because the BIA summarily affirmed the decision of the
IJ, we have reviewed the IJ’s decision. Aslam v. Mukasey,
537 F.3d 110, 114 (2d Cir. 2008). The standards of review
are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
In finding Gao’s asylum application frivolous, within
the meaning of 8 U.S.C. § 1158(d)(6), the IJ complied with
the requirements that she must: (1) give Gao notice of the
consequences of filing a frivolous application; (2) make a
specific finding that Gao knowingly filed a frivolous
application; (3) identify sufficient evidence in the record
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to support the finding that a material element of the asylum
application was deliberately fabricated; and (4) allow Gao
sufficient opportunity to account for any discrepancies or
implausible aspects of the claim. Mei Juan Zheng v.
Mukasey, 514 F.3d 176, 180 (2d Cir. 2008) (citing Matter of
Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007)); see also
Matter of B-Y-, 25 I. & N. Dec. 236, 241-42 (B.I.A. 2010).
Gao argues that she timely recanted her testimony and
that the IJ erred by finding her application frivolous
despite the recantation. Although it is an open issue
whether timely and voluntary recantation can relieve an
asylum applicant of the consequences of a frivolous filing,
the record does not establish that Gao’s recantation was
either voluntary or timely. A review of the record reveals
that Gao filed her asylum application in 2010, she was
informed of the consequences of filing a frivolous
application, and she affirmed to the IJ that her application
was “true.” She subsequently testified in conformity with
her false application at her merits hearing, and she did not
admit that she had fabricated her claim and testimony until
she was confronted during cross-examination with
documentation that essentially established her story was
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untrue. Under these circumstances, it cannot be said that
her recantation was timely and voluntary. See Matter of M—,
9 I. & N. Dec. 118, 119 (B.I.A. 1960). As to Gao’s due
process claim, given her admission that she fabricated
portions of her application and our prior holding that
“summary affirmance of IJ decisions by a single Board member
does not deprive an asylum applicant of due process,” Gao
has not established any error in the BIA’s use of summary
affirmance. Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 157
(2d Cir. 2004).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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