Henri Ndibu v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A098-544-681. [999827391]. [14-2250]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2250

HENRI KAMENGA NDIBU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued:

January 27, 2016

Decided:

May 19, 2016

Before TRAXLER, Chief Judge, and THACKER and HARRIS, Circuit
Judges.

Petition for review denied by published opinion.
Chief Judge
Traxler wrote the opinion, in which Judge Thacker and Judge
Harris joined.

ARGUED: Allison Lukanich, MELO & HURTADO PLLC, Raleigh, North
Carolina; Jim Melo, U.S. COMMITTEE FOR REFUGEES & IMMIGRANTS,
Raleigh, North Carolina, for Petitioner.
Jennifer A. Singer,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Nitin Kumar Goyal, Kevin Schroeder, MELO
& HURTADO PLLC, Raleigh, North Carolina, for Petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Civil Division, Russell J.E. Verby, Senior Litigation Counsel,
Nancy
K.
Canter,
Trial
Attorney,
Office
of
Immigration

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Litigation, UNITED STATES
D.C., for Respondent.

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DEPARTMENT

2

OF

JUSTICE,

Washington,

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TRAXLER, Chief Judge:
Henri Kamenga Ndibu petitions for review of a final order
of removal issued by the Board of Immigration Appeals (“BIA”)
which

affirmed

filed

a

the

immigration

frivolous

ineligible

for

asylum

adjustment

judge’s

conclusion

application

of

status.

and
For

that

was

the

Ndibu

therefore

reasons

that

follow, we deny Ndibu’s petition for review.
I.
Ndibu, a native and citizen of the Democratic Republic of
the Congo (“DRC”), entered the United States in September 2001
using a Canadian passport that did not belong to him.

In July

2004, after evading the attention of immigration officials for
nearly three years, Ndibu filed an affirmative application for
asylum,

withholding

Convention

Against

of

removal,

Torture

and

(“CAT”).

protection
Ndibu

under

claimed

that

the
he

feared persecution on account of his political opinion were he
to

return

to

the

Congo.

According

to

Ndibu’s

supporting

affidavit, he was living in the DRC in June 2003 when he was
arrested by government security forces because of his membership
in the Army of Victory Church and participation in the “Let us
Save the Congo” movement.
for

15

days,

during

which

Ndibu alleged that he was detained
time

he

was

“endur[ing]

severe

mistreatments, . . . sexual abuses imposed over us by the police
officers, and other types of tortures.”
3

J.A. 1542-43.

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In

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September

2004,

the

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Department

of

Homeland

Security

(“DHS”) placed Ndibu in removal proceedings, charging him with
removability
valid

for

being

documentation.

1182(a)(7)(A)(i)(I).
and

present

essentially

affidavit.

in

See

8

the

United

U.S.C.

States

§§

without

1227(a)(1)(A);

At the removal hearing, Ndibu testified

repeated

the

claims

he

asserted

in

his

In April 2006, the immigration judge denied Ndibu

relief from removal.

The immigration judge concluded that Ndibu

failed to demonstrate that he filed his asylum claim within one
year

of

entering

the

United

States,

finding

that

Ndibu’s

testimony that he arrived in the United States in 2003 was not
credible and that he failed to present other evidence supporting
an entry date of 2003.
reasons

for

regard.

its

The immigration judge offered specific

adverse

Additionally,

credibility

the

determination

immigration

judge

in

this

concluded

that

Ndibu failed to establish “a clear probability of persecution”
and

denied

his

claim

for

withholding

of

removal.

Singh

v.

Holder, 699 F.3d 321, 332 (4th Cir. 2012) (“To prevail on his
withholding of removal claim, [the applicant] must establish a
clear probability of persecution on the basis of race, religion,
nationality, political opinion, or membership in a particular
social

group.”

explaining
Ndibu

her

lacked

(internal
decision,

credibility

quotation
the

marks

immigration

regarding
4

his

omitted)).

judge

implied

“membership

in

In
that
the

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political organizations that he claimed to have belonged to,”
J.A.

302,

Ndibu’s

but

did

not

credibility

provide

in

specific

this

reasons

regard.

for

doubting

Furthermore,

the

immigration judge stated that even if Ndibu’s testimony had been
credible

regarding

his

political

affiliations,

the

evidence

still would have failed to demonstrate a “a clear probability of
persecution”
finally,

if

the

he

returned

immigration

to

the

judge

DRC.

J.A.

denied

302.

relief

under

And,
the

Convention Against Torture (“CAT”), see 8 C.F.R. § 1208.16(c),
stating summarily that Ndibu failed to show “that it would be
more likely than not that [Ndibu] would be tortured if he were
removed to the [DRC].”

J.A. 303.

Ndibu appealed, and in April 2008, the BIA affirmed the
denial of asylum, concluding that substantial evidence supported
the

immigration

establish,

judge’s

through

clear

conclusion
and

that

convincing

Ndibu

“failed

evidence,

that

to
his

asylum application was filed within one year of his arrival in
the United States.”
denial

of

however,

J.A. 261.

withholding
the

BIA

of

found

As to the immigration judge’s

removal
the

and

decision

relief

under

to

“inadequate

be

purposes of our appellate review.”

J.A. 261.

that

not

the

reasons

immigration
for

her

judge

adverse

political affiliation].”

“did

credibility
J.A. 261.
5

CAT,
for

The BIA concluded

adequately
finding

the

as

explain
to

the

[Ndibu’s

The BIA also rejected the

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conclusion

that

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Ndibu’s

evidence

would

have

been

insufficient even if Ndibu’s testimony had been credible because
the immigration judge “failed to make a specific finding as to
whether

such

past

treatment,

if

credible,

constituted

persecution on account of a protected ground, and, if so, why
the presumption of 8 C.F.R. § 1208.16(b)(1) would be overcome.”
262. 1

J.A.

Thus,

the

BIA

remanded

the

matter

“for

a

more

complete decision” as to the withholding and CAT claims.
In

September

immigration

judge

2008,
for

Ndibu

the

failed

remanded

ordered removed in absentia.

to

appear

proceedings,

before
and

he

the
was

In November 2010, however, the

immigration judge granted Ndibu’s motion to reopen proceedings
on the grounds that Ndibu did not receive sufficient notice of
the hearing following remand from the BIA.
During the proceedings on the remanded claims for relief
from removal, Ndibu, represented by new counsel, applied for an

1

The applicable regulation provides that “[i]f the
applicant is determined to have suffered past persecution in the
proposed country of removal on account of” one of the protected
grounds, “it shall be presumed that the applicant’s life or
freedom would be threatened in the future in the country of
removal” for the same reason.
8 C.F.R. § 1208.16(b)(1)(i).
“This presumption may be rebutted if . . . [the] immigration
judge finds by a preponderance of the evidence” that “[t]here
has been a fundamental change in circumstances such that the
applicant's life or freedom would [no longer] be threatened” or
“[t]he applicant could avoid a future threat to his or her life
or freedom by relocating to another part of the proposed country
of removal.” Id.
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adjustment of status on the basis of his marriage to a United
States citizen in 2002.
alien

seeking

to

See 8 U.S.C. § 1255(a).

adjust

his

status

[to

that

“Because an
of

a

lawful

permanent resident] is in a position similar to that of an alien
seeking entry into the United States,” Ferrans v. Holder, 612
F.3d 528, 531 (6th Cir. 2010), he is required to establish that
he is admissible in the first place, see 8 U.S.C. § 1255(a).
The

admissibility

requirement

was

problematic

for

Ndibu,

who

admitted to the immigration court that he had previously “sought
to procure an immigration benefit by fraud or by concealing or
misrepresenting
first

material

fact,”

J.A.

the

entered

a

United

States

in

1000,

2001

in

using

that
a

(1)

he

“Canadian

Passport issued to Charles Legault” and (2) he “[made] false
statements to the Immigration Court so that [he] could obtain
asylum,” J.A. 1001.

An alien is inadmissible who “by fraud or

willfully misrepresenting a material fact, seeks to procure (or
has

sought

to

documentation,

procure

or

or

admission

has
into

the

benefit provided under [the INA].”
Therefore,

Ndibu

pursuant

to

8

General,

in

her

applied

U.S.C.

§

for

a

1182(i),

discretion,

to

procured)

a

United

visa,

States

or

other
other

8 U.S.C. § 1182(a)(6)(C)(i).
waiver
which

“waive

of

inadmissibility

permits
the

the

Attorney

application

of

[§

1182(a)(6)(C)(i)] in the case of an immigrant who is the spouse
. . . of a United States citizen.”
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At the waiver hearing, Ndibu testified that he entered this
country on September 8, 2001, using the aforementioned Canadian
passport which was obtained for him by his parents because they
believed it was unsafe for then-19-year-old Ndibu to remain in
the DRC.

Ndibu claimed that he did not want to enter the United

States under false pretenses but eventually acceded to pressure
from

his

parents.

Ndibu

married

citizen, in December 2002.

his

wife,

a

United

States

He subsequently asked his brother,

who enjoyed permanent legal resident status, to help him adjust
his status.

Ndibu’s brother incorrectly advised him that the

only way for him to obtain an adjustment of status was to apply
for asylum, and referred Ndibu to a friend named George, who was
not a lawyer but prepared the asylum application for Ndibu and
helped him file it in 2004.

Ndibu testified that George had

concocted the facts supporting his asylum claim that he feared
political persecution if he were to return to the DRC, and Ndibu
admitted falsely testifying at the asylum hearing that he was
tortured and sexually abused during his alleged 2003 detention.
Likewise,

Ndibu

admitted

to

the

court

that

his

application

falsely represented that he arrived in 2003 and that he signed
the asylum application knowing that it was false. Ndibu also

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acknowledged that he lied on the application by stating that he
was not married. 2
Ndibu nonetheless suggested to the immigration court that,
despite having made a mistake in agreeing to submit a false
asylum claim, he had otherwise lived as a law-abiding member of
the community and that he was worthy of a fraud waiver to enable
him to adjust his status and remain in the United States with
his family.
On

May

23,

2013,

the

immigration

judge

issued

an

order

denying Ndibu’s applications for a waiver of inadmissibility and
an adjustment of status.

The immigration judge found that Ndibu

“knowingly made a frivolous application for asylum,” 8 U.S.C. §
1158(d)(6), and “‘deliberately fabricated’ material elements of
his claim after having been advised of the consequences for so
doing,”

J.A.

77

(citing

8

C.F.R.

§

1208.20).

The

court

specifically noted that Ndibu “knew it was false when he claimed

2

After asylum was denied in 2004, Ndibu hired a Maryland
immigration attorney to represent him.
Ndibu testified that
this attorney did not meet with Ndibu in person, explore his
options or take any steps at all to assist him and simply
continued forward with the false asylum claim. According to the
record, this attorney was later convicted of conspiracy to
prepare false asylum applications, immigration fraud, and
obstruction of official immigration proceedings.
After the removal order was entered against Ndibu in
absentia, he hired his current counsel who has provided
excellent representation in the pursuit of an adjustment of
status for Ndibu.
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[that he was] tortured and sexually abused in the Congo,” J.A.
77,

even

though

the

I-589

asylum

application

Ndibu

signed

expressly warned against filing a frivolous claim for asylum.
As a consequence of the frivolousness finding, the immigration
judge

determined

Ndibu

was

benefits under [the INA].”

“permanently

ineligible

for

any

8 U.S.C. § 1158(d)(6).

The BIA dismissed Ndibu’s subsequent appeal. The BIA agreed
that Ndibu was permanently barred from receiving any immigration
benefits because he “knowingly made a frivolous application for
asylum after having been advised of the consequences of doing
so.”

J.A. 2.

The BIA observed that Ndibu “conceded at his

hearing that he fabricated numerous aspects of his claim . . . ,
including his date of entry, his claimed detention and torture
in [the DRC], and his marital status, among other things.”
2.

J.A.

Ndibu acknowledged to the BIA that he signed the asylum

application knowing that it contained falsities but explained
that he did so because “‘[he] was under pressure, and . . . made
a mistake.’”

J.A. 2.

The BIA found no clear error in the

immigration judge’s determination that this explanation did not
excuse

the

material

fabrications

contained

in

the

asylum

application.
The

BIA

likewise

rejected

Ndibu’s

argument

that

the

frivolous application bar should not be applied because he did
not

have

effective

notice

of

the

10

consequences

of

filing

a

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frivolous asylum application.

The BIA, like the immigration

judge, noted that the standard asylum application form I-589
provided
filing

a

Ndibu

“with

frivolous

written

asylum

notice

of

the

application.”

consequences

J.A.

3.

The

of
BIA

concluded that this constituted adequate warning under 8 U.S.C.
§ 1158(d)(6).
Next, the Board found that the involvement of third parties
(such as his brother’s friend George) in the application process
did not excuse Ndibu’s fraudulent statements.

The BIA pointed

out that Ndibu had “numerous opportunities . . . to correct the
false statements” but failed to do so, and that he “conceded
that the handwriting throughout the application was his, and
that he signed the document . . . aware . . . the information
contained therein [was] false.”
dismissed Ndibu’s appeal.

J.A. 3.

The BIA therefore

Ndibu subsequently petitioned this

court for review.
II.
An alien who “has knowingly made a frivolous application
for

asylum”

benefits.
frivolous

is

“permanently

8 U.S.C. § 1158(d)(6).
“if

any

of

its

time

of

filing

an

for

immigration

An asylum application is

material

fabricated.” 8 C.F.R. § 1208.20.
the

ineligible”

elements

is

deliberately

The INA mandates that “[a]t

application

for

asylum,

the

Attorney

General shall . . . advise the alien . . . of the consequences .
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. . of knowingly filing a frivolous application for asylum.”
U.S.C. § 1158(d)(4)(A).

8

Notice is a prerequisite to a finding

of frivolousness; before an application for asylum is declared
frivolous,

the

alien

seeking

statutorily-required notice.

asylum

must

be

given

the

See 8 U.S.C. § 1158(d)(6) (“If the

Attorney General determines that an alien has knowingly made a
frivolous application for asylum and the alien has received the
notice under paragraph (4)(A), the alien shall be permanently
ineligible for any benefits under [the INA] . . . .” (emphasis
added)). 3
Ndibu

first

contends

that

he

did

not

receive

adequate

notice of the consequences of filing a frivolous asylum claim.
The record reflects that on July 22, 2004, Ndibu printed his
name and signed his asylum application directly underneath the

3

The BIA has provided a list of requirements that 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 Immigration Judge or the [BIA] 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 account for any discrepancies or
implausible aspects of the claim.
In re Y-L-, 24 I. & N. Dec. 151, 155 (BIA 2007); see 8 C.F.R. §
1208.20. For our purposes, only the notice requirement is at
issue.
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paragraph labeled “WARNING.”

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That paragraph warns, among other

things, that “[a]pplicants determined to have knowingly made a
frivolous application for asylum will be permanently ineligible
for any benefits under the Immigration and Nationality Act.”
J.A. 1538.
penalty

of

By signing the application, Ndibu affirmed “under
perjury”

that

“this

application

and

submitted with it are all true and correct.”

the

Id.

evidence
Moreover,

during the initial asylum hearing in April 2006, the immigration
judge asked Ndibu if he had any changes or additions to make to
the application.

Ndibu’s counsel noted only a few typographical

errors.
Ndibu acknowledges that the I-589 asylum application form
sets

forth

a

warning

about

frivolous asylum application.

the

consequences

of

filing

a

Ndibu argues, however, that this

printed notice is inadequate and that § 1158(d)(4)(A) requires
the immigration judge to provide an oral warning as well.

We

cannot

of

agree.

The

statute

requires

that

“[a]t

the

time

filing an application for asylum, the Attorney General shall . .
. advise the alien . . . of the consequences . . . of knowingly
filing

a

frivolous

1158(d)(4)(A).

application

for

asylum.”

8

U.S.C.

§

The warning supplied by the I-589 form clearly

satisfies these basic requirements by advising asylum applicants
that they will be “permanently ineligible for any benefits under
the [INA]” if they knowingly file a frivolous application.
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And, because every asylum applicant must complete, sign

and submit an I-589 form, the inclusion of the warning on the
form itself ensures that the required notice is received “[a]t
the

time

of

because

filing.”

the

8

U.S.C.

applicable

§

1158(d)(4)(A).

“regulations

permit

In

fact,

filing

the

application in a variety of different ways, including by mail or
at

a

hearing

before

an

[immigration

judge],”

placing

“[t]he

warning on the asylum application form itself, therefore, is the
only means under the current regulatory scheme by which notice
may be given at the time of filing, regardless of the manner of
filing.”
curiam)

Niang v. Holder, 762 F.3d 251, 254 (2d Cir. 2014) (per
(emphasis

added)

(internal

quotation

marks

omitted).

The INA makes no mention of the form that the required notice
must take, oral or written.

It simply does not require that an

immigration judge advise an alien—orally or in in writing—of the
consequences of knowingly filing a frivolous application.
Ndibu concedes that every circuit court of appeals to have
considered
forth

on

the
the

requirement

of

issue
I-589
§

has

ruled

asylum

that

the

application

1158(d)(4)(A)

without

written
satisfies
an

warning
the

set

notice

additional

oral

warning from an immigration judge at the asylum hearing.

See

Niang, 762 F.3d at 254; Ruga v. U.S. Att’y Gen., 757 F.3d 1193,
1197 (11th Cir. 2014); Pavlov v. Holder, 697 F.3d 616, 618 (7th
Cir. 2012); Cheema v. Holder, 693 F.3d 1045, 1049 (9th Cir.
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2012); Ribas v. Mukasey, 545 F.3d 922, 929–30 (10th Cir. 2008).
We find these decisions to be persuasive and join these courts
in

concluding

the

warning

supplied

on

the

I-589

form

is

sufficient in and of itself and need not be supplemented by the
immigration judge. 4
Nonetheless, Ndibu urges us to ignore our own plain reading
of the text, break from our sister circuits and defer to the
BIA’s

interpretation

of

the

notice

provision,

which

contends is contrary to the foregoing line of cases.
to do so, for a couple of reasons.

Ndibu

We decline

First, because the language

of the statute is clear and unambiguous, “that is the end of the
matter; for the court, as well as the agency, must give effect
to the unambiguously expressed intent of Congress.”

Chevron

U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842–43

(1984).

“[D]eference

to

[the

agency’s]

statutory

interpretation is called for only when the devices of judicial
4

We further note that, as in the cases decided by our
sister circuits, there is no credible claim here that a language
barrier prevented Ndibu from understanding the consequences of
filing a frivolous asylum application, as supplied on the I-589
form. See Niang, 762 F.3d at 254 n.1; Ruga, 757 F.3d at 1196;
Pavlov, 697 F.3d at 618–19; Cheema, 693 F.3d at 1049 n.4; Ribas,
545 F.3d at 930.
Ndibu conceded before the immigration judge
that he was aware “of the consequences of knowingly filing a
frivolous asylum claim,” J.A. 207, and that the notice
requirement “ha[d] been clearly complied with,” J.A. 208.
His
claim before this court that he did not understand the
consequences stated on the I-589 form is thus foreclosed by the
record.

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construction have been tried and found to yield no clear sense
of congressional intent.”

General Dynamics Land Sys., Inc. v.

Cline, 540 U.S. 581, 600 (2004).

It is clear that Congress did

not intend to require oral notice from an immigration judge to
satisfy § 1158(d)(4)(A).
Second,

even

if

we

were

to

consider

the

line

of

BIA

decisions relied upon by Ndibu, these decisions do not aid him.
See Matter of X-M-C-, 25 I. & N. Dec. 322 (BIA 2010); Matter of
B-Y-, 25 I. & N. Dec. 236 (BIA 2010); Matter of Y-L-, 24 I. & N.
Dec.

151

(BIA

2007).

In

these

decisions,

the

BIA

did

not

conclude that the INA mandated additional oral warnings from the
immigration judge at the asylum hearing; rather, the BIA merely
suggested that “it would be a good practice for an Immigration
Judge

who

believes

frivolous

asylum

attention

of

proceedings.”

that

an

application

the

applicant

applicant
to

may

bring

prior

to

have

this
the

submitted

concern

to

conclusion

a

the
of

Matter of Y-L-, 24 I. & N. Dec. at 159-60; see

Matter of B-Y-, 25 I. & N. Dec. at 242 (“[O]ur ‘good practice’
suggestion in Matter of Y-L- was not meant to add a blanket
requirement that an Immigration Judge must provide additional
warnings

during

the

course

of

the

merits

hearing

frivolousness determination is being considered.”).

that

a

Moreover,

the purpose of this particular “good practice” directive from
the BIA was “to afford a sufficient opportunity [for the asylum16

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seeker] to account for discrepancies” in the application for
asylum.

Matter of Y-L-, 24 I & N Dec. at 159.

This line of

decisions does not purport to interpret the manner in which the
notice required at the time of filing under § 1158(d)(4)(A) is
to be issued; rather, these decisions provide guidance as to
what

is

required

to

satisfy

the

regulation

mandating

that

“during the course of the proceedings, [the applicant] [have]
sufficient

opportunity

to

account

implausible aspects of the claim.”

for

any

discrepancies

or

8 C.F.R. § 1208.20 (emphasis

added).
In sum, we conclude that the notice set forth in the I-589
application for asylum suffices to satisfy the requirement under
§

1158(d)(4)(A)

that

the

applicant

be

notified

consequences of filing a frivolous application.
immigration

judge

is

free

to

give

an

of

the

Although an

applicant

additional

warnings during the hearing, there is no statutory requirement
that he do so.
III.
We touch briefly on Ndibu’s remaining arguments, finding
them to be without merit.

Ndibu asserts that the notice was

inadequate because his English ability was limited at the time
he filed his initial application and because he was assisted by
an

unlicensed

counsel.

individual,

Accordingly,

and
Ndibu
17

later
argues

by

ineffective

that

affirming

legal
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frivolousness finding would amount to a due process violation.
As the Attorney General points out, however, Ndibu acknowledged
under oath at the hearing in March 2013 that he knew when he was
signing the asylum application in 2004 that it contained false
information.

Specifically, he admitted that he falsely claimed

he was not married, falsely claimed he entered this country in
July 2003, and falsely testified that he was detained in the
DRC, tortured and sexually abused on account of his political
affiliations.
was

false

contents.

Ndibu acknowledged that he knew the information

when

he

signed

the

application

attesting

to

its

Accordingly, Ndibu’s assertion now that he did not

know what he was doing due to a language barrier, and blaming
his

preparer

and

counsel

for

his

frivolous

application,

is

unavailing, since he clearly stated that he knowingly lied and
committed perjury. 5

Given that he acknowledged intentionally

lying on his application and committing perjury, Ndibu cannot
show prejudice to support a due process claim.
Ndibu finally asserts that it was error for the immigration
judge to make a frivolousness finding because the issue was not
properly before the immigration judge on remand.

5

In April 2008,

Further, as the Attorney General notes, Ndibu made no
attempt to comply with the requirements of Matter of Lozada, 19
I. & N. Dec. 637, 639 (BIA 1988), as required to set forth an
ineffective assistance claim in immigration proceedings.
See
Xing Yang Yang v. Holder, 770 F.3d 294, 299 n.6 (4th Cir. 2014).
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the BIA sustained the immigration judge’s denial of asylum on
the basis that Ndibu failed to demonstrate that he applied for
asylum within one year of his arrival in the United States.

The

BIA remanded Ndibu’s claims for withholding of removal under the
INA and the CAT; therefore, Ndibu’s claim for asylum was not
covered by the remand.

Ndibu argues that § 1158(d)(6) “implies

that [a] frivolous finding will be made only during the time the
asylum application is before the adjudicating body, not after a
final

determination

Petitioner

at

25.

has

already

been

taken.”

thus

believes

that

Ndibu

Brief
once

of

the

BIA

affirmed the immigration judge’s denial of asylum, his asylum
claim was no longer a “live” issue and it was improper on remand
for the immigration judge to make a frivolousness finding.
Ndibu did not raise this particular argument before the BIA
on appeal from the immigration judge’s finding that he had filed
a frivolous asylum application.

Instead, Ndibu argued to the

BIA that he withdrew his asylum application following remand and
voluntarily confessed his false asylum claims, “elect[ing] to
correct prior misrepresentations in the interest of good faith.”
J.A. 28.
without

Because he confessed and “withdrew” the asylum claim
being

coerced

by

the

court,

frivolousness bar should not be applied.

Ndibu

argued

the

This is a different

argument than the one Ndibu raised in the petition for review to
this court.

Failure to make the argument that a frivolousness
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finding was inappropriate on remand deprives us of jurisdiction
to consider the claim.

See Tiscareno-Garcia v. Holder, 780 F.3d

205, 210 (4th Cir. 2015) (observing that “an alien who does not
raise a particular claim before the BIA fails to exhaust his
administrative remedies as to that claim” such that “the federal
courts

lack

jurisdiction

to

consider

it”).

Accordingly,

we

reject this argument as well.
IV.
In

accordance

with

the

foregoing

discussion,

we

deny

Ndibu’s petition for review.
PETITION FOR REVIEW DENIED

20