Khaytekov v. Garland, No. 19-3149 (6th Cir. 2022)
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Khaytekov, a citizen of Uzbekistan, came to the U.S. in 2001 and overstayed his visa for many years. In removal proceedings, Khaytekov sought asylum. alleging that he had been persecuted “by nationalist[s] and fascist[s]” in Uzbekistan because of his religion, nationality, and political opinion and feared “physical attacks” if he returned. While his removal proceedings were pending, Khaytekov married a U.S. citizen, withdrew his request for asylum, and applied to adjust his status to lawful permanent resident, which required him to show that he was “admissible” 8 U.S.C. 1255(a). An IJ found Khaytekov inadmissible because he had filed a “completely fabricated” asylum application. Khaytekov later admitted that the application contained false information; he had not been persecuted in Uzbekistan. Khaytekov’s subsequent request for a hardship waiver was denied because Khaytekov had knowingly filed a frivolous asylum application, which rendered him “permanently ineligible” for any benefits under the immigration laws, section 1158(d)(6). The BIA upheld the decision.
The Sixth Circuit previously denied relief, rejecting a “Pereira” claim in which Khaytekov alleged that he received a defective notice to appear. Following a remand from the Supreme Court, the Sixth Circuit again denied Khaytekov’s petition. To be “permanently ineligible,” an asylum seeker who files a frivolous application must have received adequate notice “of the consequences” of doing so, section 1158(d)(4)(A), (d)(6). The standard asylum application form contains a warning about frivolous applications. The IJ did not give Khaytekov the customary verbal secondary warning, but nothing in section 1158(d) requires an additional warning.
This opinion or order relates to an opinion or order originally issued on December 16, 2019.
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