Asylum; “Frivolous application”; 8 USC § 1158(d)(6); Adequate notice; § 1158(d)(4)(A); Garcia-Romo v Barr; Niz-Chavez v Garland; Whether petitioner “filed” an asylum application; 8 CFR § 1208.3(a); Whether an “additional verbal warning” from the immigration judge (IJ) was required

On remand from the Supreme Court, the court considered whether an individual who files a frivolous asylum application is entitled to a “secondary warning” from the IJ where the application form contains a written warning that a frivolous application will result in permanent ineligibility. It held that “the warning in the application form itself satisfies the statute’s notice requirement.” In a previous opinion, the court rejected petitioner-Khaytekov’s “claims for relief on narrower grounds” without reaching his argument that the IJ’s failure in his case to give the secondary warning routinely given by IJs in court violated § 1158(d)’s notice requirement. However, the Supreme Court remanded the case for reconsideration in light of Niz-Chavez, and the court now had to address the statutory question. It held that Khaytekov remained ineligible for cancellation of removal where he had filed a “frivolous asylum application”—the IJ found him “inadmissible on this ground because of a litany of lies that he told during his immigration proceedings.” Khaytekov argued that he never actually “filed” an asylum application with the immigration court but that he only “lodged” it. However, the court held that “parties can ‘file’ asylum applications even if they have not signed Parts F or G. . . . Khaytekov ‘made’ and ‘filed’ his application under the relevant provisions when he submitted it for entry into the record . . . .” The court rejected his argument that he was entitled to an “additional verbal warning” from the IJ regarding the dangers of filing a frivolous complaint, holding that neither the text of § 1158(d)(6) nor court precedent supported his assertions. Thus, the court concluded that while Niz-Chavez overturned its earlier determination “that Khaytekov could not obtain cancellation-of-removal relief because he could not satisfy that relief’s physical-presence requirement[,]” he was still “ineligible for cancellation of removal because he filed a frivolous asylum application.” Because Niz-Chavez did not affect the other aspects of the court’s earlier opinion, it simply incorporated the other parts by reference. It dismissed his petition for review in part and denied it in part.