Helina Mekonnen v. Loretta Lynch , 668 F. App'x 481 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1087
HELINA TEFERRA MEKONNEN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 30, 2016 Decided: September 1, 2016
Before WILKINSON, DUNCAN, and THACKER, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Zewdu Alem, LAW OFFICE OF ZEWDU ALEM, Silver Spring, Maryland,
for Petitioner. Benjamin C. Mizer, Principal Deputy Assistant
Attorney General, Stephen J. Flynn, Assistant Director, Anh-Thu
P. Mai-Windle, Senior Litigation Counsel, U.S. DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Helina Teferra Mekonnen, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (Board) dismissing her appeal from the immigration
judge’s (IJ) decision finding that she was ineligible for
benefits under the Immigration and Nationality Act because she
filed a frivolous asylum application. See 8 U.S.C. § 1158(d)(6)
(2012). We dismiss in part and deny in part the petition for
review.
Insofar as Mekonnen argues that her asylum application is
not frivolous because she did not submit false documents or rely
upon false facts, we conclude we are without jurisdiction to
consider this argument. An alien “who does not raise a
particular claim before the [Board] fails to exhaust [her]
administrative remedies as to that claim” such that “the federal
courts lack jurisdiction to consider it.” Tiscareno-Garcia v.
Holder, 780 F.3d 205, 210 (4th Cir. 2015); see also Ndibu v.
Lynch, 823 F.3d 229, 237 (4th Cir. 2016) (“Failure to make the
argument that a frivolousness finding was inappropriate on
remand deprives us of jurisdiction to consider the claim.”).
Because Mekonnen did not raise this particular claim on appeal
before the Board, we are without jurisdiction to consider it.
Accordingly, we dismiss that part of the petition for review.
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An alien who “has knowingly made a frivolous application
for asylum,” after having been informed of the consequences of
submitting such an application, is permanently ineligible for
immigration benefits, including adjustment of status. 8 U.S.C.
§ 1158(d)(6); Ndibu, 823 F.3d at 230 (as a consequence of filing
frivolous asylum application, alien was ineligible for
adjustment of status). An asylum application is frivolous “if
any of its material elements is deliberately fabricated.” 8
C.F.R. § 1208.20 (2016). An alien’s misrepresentation is
material if it “had a natural tendency to influence the
decisions” of the agency or “tends to shut off a line of inquiry
which is relevant to the alien’s eligibility and which might
well have resulted in a proper determination that [s]he” was
inadmissible. In re D-R-, 25 I. & N. Dec. 445, 450 (B.I.A.
2011) (alien’s failure to disclose employment as police officer
during Bosnian war was a material misrepresentation (internal
quotation marks omitted)); see also Yousif v. Lynch, 796 F.3d
622, 629 (6th Cir. 2015) (“[A] concealment or misrepresentation
is material if it has a natural tendency to influence, or was
capable of influencing, the decision” of the agency. (internal
quotation marks omitted)); Injeti v. USCIS, 737 F.3d 311, 316-17
(4th Cir. 2013) (observing that the Board considers a
misrepresentation material if it tends to shut off a relevant
line of inquiry).
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A finding that the asylum applicant knowingly filed a false
or fraudulent submission that was material to the application is
a finding of fact we review for substantial evidence. See
Albu v. Holder, 761 F.3d 817, 821 (7th Cir. 2014); Aziz v.
Gonzales, 478 F.3d 854, 857 (8th Cir. 2007). “[A]dministrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B) (2012). We have considered Mekonnen’s
arguments challenging the finding that her omission was not a
material misrepresentation and find the arguments to be without
merit. We therefore deny in part the petition for review.
Accordingly, we dismiss in part and deny in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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