Ud Din v. Garland, No. 21-6586 (2d Cir. 2023)
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Pakistani nationals and brothers petitioned for review of a Board of Immigration Appeals decision upholding orders denying them adjustment of status and directing their removal from the United States. Petitioners argued that the agency erred in finding them ineligible for adjustment of status based on their earlier filing of frivolous, i.e., deliberately and materially false, asylum applications because those applications were untimely and, thus, their concededly false statements could not have been material to a matter properly before the agency for decision. Petitioners further faulted the agency for alternatively denying them adjustment of status as a matter of discretion.
The Second Circuit denied Petitioners’ petition for their review. However, the court explained that a question arises as to how Petitioners removal will affect their future ability to apply for reentry to the United States. A permanent and unwaivable bar on reentry applies to any alien who filed a frivolous claim for asylum after receiving notice of that consequence. Otherwise, the alien may be subject to lesser, waivable bars on reentry. Because this court cannot determine on the present record whether Petitioners received the notice required to trigger a permanent, unwaivable bar. The court granted review as to that single question and remanded for the limited purpose of allowing the agency to make an express finding as to notice and, based on that finding, to specify the scope of the reentry bar that will attend Petitioners’ removal.
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