Thomas Githinji v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A087-500-676. Copies to all parties and the district court/agency. [999727335]. [15-1429]

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UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Thomas
petitions

Wango
for

Githinji,

review

of

a

native

the

Board

and
of

citizen

of

Immigration

Kenya,

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
2

sufficient

opportunity

to

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account

for

claim.”

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any

discrepancies

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or

implausible

aspects

of

the

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

deliberately fabricated material elements of the claim.”
157.

and

Id. at

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.
3

Githinji’s

fabrication

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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

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