Thomas Githinji v. Loretta Lynch , 627 F. App'x 243 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1429
THOMAS WANGO GITHINJI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 12, 2015 Decided: December 30, 2015
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Tamar Jones, FAYAD LAW, PC, Richmond, Virginia; Ryan Morgan
Knight, FAYAD LAW, PC, Fairfax, Virginia, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
John S. Hogan, Assistant Director, Lindsay Corliss, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Wango Githinji, a native and citizen of Kenya,
petitions for review of the Board of Immigration Appeals’
(Board) order dismissing his appeal from the immigration judge’s
(IJ) order finding that Githinji filed a frivolous asylum
application and was ineligible for adjustment of status. We
deny the petition for review.
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) (2012); Niang v. Holder, 762 F.3d 251, 254-55 (2d
Cir. 2014) (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 (2015). The
following requirements must be met before an asylum application
is declared frivolous: “(1) notice to the alien of the
consequences of filing a frivolous application; (2) a specific
finding by the [IJ] or the Board that the alien knowingly filed
a frivolous application; (3) sufficient evidence in the record
to support the finding that a material element of the asylum
application was deliberately fabricated; and (4) an indication
that the alien has been afforded sufficient opportunity to
2
account for any discrepancies or implausible aspects of the
claim.” In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007).
“Because of the severe consequences that flow from a
frivolousness finding, the preponderance of the evidence must
support an [IJ’s] finding that the respondent knowingly and
deliberately fabricated material elements of the claim.” Id. at
157. The IJ must provide cogent and convincing reasons for
finding by a preponderance of the evidence that the applicant
knowingly and deliberately fabricated material elements of his
claim. Id. at 158-60.
A finding that the applicant knowingly filed a false or
fraudulent submission that was material to the asylum
application is a finding of fact that this court reviews 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). Our review is
limited to the Board’s order because the Board did not expressly
adopt the IJ’s opinion. Martinez v. Holder, 740 F.3d 902, 908 &
n.1 (4th Cir. 2014).
We conclude that substantial evidence supports the finding
that Githinji knowingly and deliberately fabricated a material
element of his asylum application. Githinji’s fabrication
3
concerning the length of his detention was closely related to
the key event underlying his asylum application. See Dankam v.
Gonzales, 495 F.3d 113, 122 (4th Cir. 2007) (when arrests are
key events underlying asylum claim, “it follows that details
surrounding these arrests and the dates on which they occurred
are more than minor or trivial details”). Because Githinji
provided two different versions concerning his detention and how
he acquired his visa and he was vague and evasive in response to
evidence that was contrary to his initial version of events,
substantial evidence supports the finding that his fabrication
was knowing and deliberate.
Accordingly, we deny the petition for review. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
4