my name is allison luc an itch and i'm an attorney from raleigh north carolina i represent the petitioner mr henry and to do this case alternately boils down to two main points one did mr new do blue receive actual notice of the consequences of filing a frivolous siloam application and two was entry of the frivolous finding proper as it was made seven years after the immigration judge denied his application for asylum the factual issues of this case are not in dispute he's a french speaker from the democratic republic of congo he was forced out of family pressures to rely on george an unscrupulous attorney interpreter and then patrick say soon a disbarred attorney who was later criminally and is there any evidence in the record that he wasn't able to understand what the translator was saying or that there was a problem with the translator there is no evidence of that at the initial asylum interview in the record however because the interpreter that he brought with him was the interpreter that he testified prepared the application and filed the documentation i would argue that clearly there was some deficiency in the interpretation because it was it was clear that this on george was not solely an interpreter but george was someone acting as an attorney preparing this this application for him and filing it on his behalf without his knowledge of everything that was contained in it  so there's therefore nothing in argue that nothing in the record that indicates he did receive either the written warning or an oral warning of the devastating consequences of his actions by moving forward on filing a frivolous asylum application this application was translated for him into french and he was told by his interpreter what to write down on the application the same translator fabricated historian english which was written out included in the administrative record providing no copy of french for him to review and to swear to that same interpreter then interpreted his testimony at the asylum office so there are a lot of questions as to the accuracy and what what did this interpreter do did this interpreter truly read every single question and piece of information on the application itself and adequately translate it and furthermore there's no indications about just a question about all those questions  i mean who would have the burden of proof on something like that just assuming hypothetically that he has to figure out whether there was actual notice or there a language barrier precluded that i mean would the petition have the burden of showing that there was in fact a language barrier or is it your view that the agency would have to show that there wasn't it was it's my view that it would be the agency's burden to show that as it is their burden to demonstrate that the for its use me the four criteria and matter of y l are established in upholding a frivolous finding so it would be my argument that it's the government's burden to demonstrate that as  well in addition to to no evidence in the record of these written warnings being translated or given to him there is no evidence that there was ever any oral notice given to him by his now just part attorney by the immigration judge or by anyone throughout the the proceedings which is exactly why the b i a i over the years has included clarifications and safeguards in its two presidential decisions matter of y l and matter the why to establish what constitutes notice to establish what steps in immigration judge what about his admission that he was advised by the court of the consequences of knowingly filing approval as asylum claim at the april nineteenth two thousand and six hearing seven i will point out that the application filed in advance of that hearing by his now just part attorney was never signed or sworn to by the immigration judge nor was it signed by his hand and i what what was not on the asylum application that was filed in court in advance of his april two thousand and six individual hearing was never signed by him nor was it signed and sworn to by the immigration  the tenancy the case i will add hundred dressed at issue but briefly at the time we it is my understanding that we do not have the entire administrative record the administrative record was ultimately submitted to our office through a feedom of information act request on cassette tapes it was never written out in the transcripts that was provided through the administrative record once this appeal was filed so it's at the time i believe there was not full notice that that there was some misunderstanding as to the level of notice that was provided so moving forward the government contends that the board does not require an immigration judge to provide oral notice which is simply incorrect matter of b y very clearly holds that sufficient notice is afforded when the warning for acquired at the board is is simply incorrect as are you making two separate arguments or are you arguing that even if there is no language barrier i mean are you arguing that as a general proposition there must always be oral notice or are you arguing that when there is a potential language barrier there is a problem if there is not world notice or both both if you will permit it to explain i believe that the why was decide the matter of the why was decided to afford that extra safeguard when there is a language barrier issue because in the immigration court there's always a certified translator an interpreter it's not someone who's brought along so when it while the may be these misunderstanding issues when an application asylum application is first filed and that person is entitled to bring their own interpreter to the asylum office here and interview if the case is ultimately referred to the immigration court which it was instance at that point where before the executive office for immigration review and there is a certified interpreter who is not going to influence the interpretations one way or another who's that you have a right good practice but every court to consider this right has held that the statute does not require will notice that is that correct well there's there are some circuit courts that have made that determination but i was there any and no court that's come out the other way  not to my knowledge that is that i said no i would argue the just staying sions in the five circuit courts have made that holding that the written warnings in the asylum application themselves are enough however in each of those circuit courts the facts of the case clearly demonstrate that there was other notice also provided to the to the application whether that be through an oral warning on the record by the immigration judge whether that be through the immigration judge instructing the attorney to provide that warning outside of court or whether it be a statement signed by the applicant at his asylum interview which was translated that clearly laid out again those warnings and the actions he's admitted culpability for what he's done he has never there is no evidence that states that he himself was aware of these consequences and based on his character based on the person he is as is not aware that if you repeatedly the law in a hearing or in any circumstance that there will be consequences i think the record he did in his final hearing before the immigration judge in two thousand and thirteen explained to the immigration judge that the country and the culture that he's from that's that's what you have to do to get ahead in life that it's it's a culture of lying and that he hasn't ever faced consequences for those actions before he had no understanding of the court system and of of what our legal system here is in the united states and up until he retained certain counsel he was never made aware of these these warnings they were never clearly translated to him what he was attesting to in the first holding in two thousand and eight oral warnings were provided by the immigration judge not just once but on two occasions prior to the judge entering a holding for a list finding and sorry can i just as i know you're running out of time i just you back to i guess what is your second argument that putting to one side for a minute whether oral warnings are required as a matter of course this question of whether they should be required whether something should be done when there's a potential language barrier that kind of distinct argument that there was a barrier here that prevented actual notice a language barrier that was raised before the i'm struck by the fact that the b i a doesn't because because you did raise this argument clearly before that not just the argument that is a matter of course there should always be oral warnings but that here there was a language barrier yes that is an ok yes that's been consistent throughout so the other main point that is at issue in this case is whether whether it was actually proper for the immigration judge to make a frivolous finding when it was entered seven on another application the immigration judge is still entitled to uphold a frivolous finding or to make a frivolous finding however i would argue that our case is clearly distinguished because in the present case the immigration judge at the initial two thousand and six hearing never brought up frivolousness it was never mentioned it was never at issue the immigration judge denied the asylum application ultimately because there was not enough evidence to determine it was filed timely there was not enough evidence to determine that the it that that mr new do filed it within one year of his entry that decision went to the board of immigration appeals on a pro se appeal and the board upheld that sedition they said ok asylum cases they were denied and they remained it on other issues so there's a jurisdictional issue as to whether seven years after the asylum application is denied whether the immigration court is still intitled to hold a frivolousness finding again this goes to due process concerns and fundamental fairness there are no i cases on point matter of x m c does discuss these issues to some extent however they it does not discuss after an asylum application has then decided on and after that decision has been upheld by the board whether a frivolous finding after that fact just a warranted they have decided for a list finding can be made it any time even if there is never a final decision on the merits but they do not discuss if after a final decision on the merits is made whether frivolousness can be can still be found and under the again the due process and fundamental fairness would argue that they would be collaterally is stopped from doing so or else you'd be looking at years down the road these cases getting reopened and and many people having their citizenship stripped and residency taken away when the issue  bar to receiving benefits under the immigration action not apply to him because first that he did not receive notice and second that immigration judge is not entitled to make a frivolous finding on remand and proceedings as for the notice he argues that in addition to written warnings that the immigration judge should have given him oral warnings in the absence of those oral warnings that the notice wasn't was defective under the statute this court has not yet to rule on that issue but the court should find that the written advise was in the i five eighty nine asylum application itself is sufficient under the statute under the notice provision of the statute to await d for a all it states is that the attorney general shall advise the alien of knowingly filing filing a frivolous asylum application at the time of filing that's it it doesn't specify that the notice needs to be in writing or needs to be oral or that the immigration judge has to give it just said that notice must be given relying on that statute and the reasoning five circuit courts have held that written notice is sufficient under that statute and written notice in the i five eighty nine in itself is sufficient counsel all of those cases right say expressly and no one is arguing in these cases that they couldn't understand that there was a law which barrier so i guess i just want to make sure i understand your argument is that written notice as a general matter sufficient or written notice is sufficient even if applicant doesn't understand english and no one is translating to fold guess that written notice in the five eighty nine itself is sufficient there may be gray area where the alien later claims that he didn't understand it but that here is not really the case i mean he's now claiming belated leading to i guess i'm just trying to figure out the rule of law put to one side the strength of this petitioners claim that he didn't understand i mean are you asking for a ruling that no matter what written notice is always sufficient or that notice is sufficient as all the other circuit courts available at least so long as there is no claim that a language barrier prevented it from the actual i mean i think in from a fair standpoint written notice would be sufficient so long as there's no claim that but alien didn't understand but in this case while petitioner is now claiming that he doesn't understand the facts just simply do not support that contention  he argued he conceded before the immigration judge and his rate in closing statement that notice was not an issue he didn't claim that he didn't understand it but during the his testimony in  the proceedings claimed that he learned english quickly after he married his u s citizen wife he married his u s citizen wife in two thousand and two he applied for asylum in two thousand and four almost a full two years later was suggests that he at least had an understanding of english and his his signature it's written in english he swore to its contents before an asylum officer doing it during an interview he was given an opportunity to make changes to that before the immigration judge in the initial round of proceedings and i would just suggest that these even though he's saying he doesn't now understand what he was signing or that he didn't understand the warnings he didn't speak english just those facts suggest that he did understand english and because he did understand that that notice  down and let someone figure out or make a more inclusive finding about whether or not there was a language barrier here because no one seems to address this well going back to the b a to have addressed at the immigration judge generally would have addressed it but the immigration judge did it because in the  closing statement before the i j a petitioner's counsel conceded that notice was an issue so the i j a didn't address it and then on appeal to the board petitioner didn't really make that claim of notice he just basically said that didn't understand the nature of immigration proceedings and he was represented by unscrupulous first anon attorney named george and then later on by an attorney but that's just a kind of a red herring simply because the language wasn't as precise as one might have liked but that you could read it generously to at least being raising this idea look i didn't get actual notice because i don't speak english you don't think so you think this claim has been absolutely we i think it's been waived and  tester matter of y l and petitioner conceded that issue one which is the notice issue was not an issue in the case so there was really no need for the to address it and that was after the george and those attorneys that he had an issue with that was filed by the attorney represented by today yes that's correct that was in the following the remounted proceedings  based upon those facts i would argue that he did understand english and he did know what he was signing and receive the written warning and understood the written warning and then piggybacking on to that that warning i five eighty nine itself is sufficient notice under the statute and circuit court sr circuits have agreed on that point i would also like to briefly turn to the issue of whether the immigration judge properly made a frivolous finding for the first time on remand of proceedings again this argument was that the court has no jurisdiction to consider that argument as the petitioner did not raise  before the board in any event in this case it's kind of a long procedural history but before the board on the first go around the board affirmed the denial of asylum based specific her current asylum application pending on remand proceedings is immaterial to the to the question of whether an immigration judge may then go ahead and make a frivolous finding reminded proceedings the trigger as explained in the board's decision and matter of x m c the trigger is whether on whether an i j can go ahead and make a frivolous determination is whether an asylum application was filed at one point in time or made at one point in time the statute to await d six talks about whether an alien made a frivolous application then he may be barred and then the regulation discusses in terms of whether an application for asylum was filed and that's the trigger for whether or not an immigration judge can go ahead and make a frivolous finding these provisions do not limit a frivolous frivolousness finding two applications going forward or there's a new one is filed or whether one is pending at the time and fine otherwise would just lead to almost absurd results it shouldn't be that an alien should not benefit from filing a silent application in the past that he admitted wife if there's no further questions i just basically sum up for these reasons and for the reasons we stay in our brief it's the government's position that the petitioner received adequate notice as per the statute simply because it was written in five eighty nine and that he understood those advisable so whatever argument he makes now that he didn't understand the facts suggest that he did understand and that the agency is permitted on remand and proceedings to make a frivolous finding which it did here and simply because there was no pending asylum application in front of it would not preclude it from going ahead and making that finding and because of good morning your honor may it please the court my name is jim mello and i am such counsel that's been mentioned a few times here and i will admit openly that this is this procedurally was a very interesting case for me it's it's  made a legal error in writing that brief at that time i did not have the floor entirety of the record that we later received when we submitted the appeal to the b i a lacking that record i obviously couldn't have known exactly what notices were or were not given i didn't have the prior transcripts of any prior proceedings in this case actually i was sent tapes audiotapes and i didn't have all of that documentation when i wrote that brief unfortunately and unfortunately i did legally concede that out but that was my plain legal air and i openly admit that and it's in unfortunately and i hope it does not negatively in reality henry would be a u s citizen right now if he had had proper legal counsel from the beginning he was already married to a u s citizen she could have petitioned for him much as she did later on in life and he could have got he'd be a citizen right now that that's what appalls me the most about this case and henry henry as it's in the record he's a very religious man he's never even had a speeding ticket i don't know anybody has not had a speeding ticket or a parking ticket or anything like that and in it and i ponder what would have happened if he had been there in court and a judge had specifically given him these warnings are if someone in the asylum office had specifically given him these warnings and interpreted them to him properly and explained to him the severity of the consequences that he knew he was doing something wrong he openly admits that he knew he was doing something wrong he knew he was lying he knew that this attorney had produce i think a lot of people who come from a lot of third world countries it's a way of life it's bribery extortion manipulation whatever it is you need to do to get by on a day to day basis that it's in essence a way of life it's doesn't mean that you don't know it's wrong or that it's you know that you're lying or that you're fraudulently trading documents but the reality is in this particular case the attorney in georgia the ones who created all these other documents they're the ones who created the story for him now the question is did they properly advise him i honestly doubt it i mean they have no interest in properly advising him and scaring him into what are the severity of these consequences because again if this and i don't even want to call him an attorney because he was not in any sense of the word and it appalls me that he had a certificate to be an attorney he was certainly not one but if if he had had proper counsel he would be a citizen it just comes down to that and so my point my main point being is that these people had no interest in henry knowing the truth of the severity of the consequences and and i hope that this case can in shed some light on this so that people in henry situation don't induct where he is today trying to make these arguments and and so we don't know  these consequences and severity of these conses or yes his wife told them you know you're doing something wrong but that's different than actually getting legal warnings and having explained to him the severity of those consequences are two very different steps and so i hope that in the future people in hundreds situation a good man who i think i would hope that had a judge sat him down explain to him you will never be able to receive any immigration benefit it would have been a wake up call and he would have said you know what i simply can't go through with this and just discarded his attorney and any out any other people that were involved in this at this debacle and so i appreciate your time unless anyone has any further questions thank