RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0036p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TAKHIR ASHIROVICH KHAYTEKOV,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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No. 19-3149

On Remand from the United States Supreme Court.

Petition for Review from the Board of Immigration Appeals;

No. A 094 219 176.

Decided and Filed: February 25, 2022

Before: SILER, COLE, and MURPHY, Circuit Judges.

_________________

COUNSEL

ON SUPPLEMENTAL BRIEF: George P. Mann, Maris J. Liss, GEORGE P. MANN AND 

ASSOCIATES, Farmington Hills, Michigan, for Petitioner. Karen L. Melnik, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

_________________

OPINION

_________________

MURPHY, Circuit Judge. Often described as an immigration “death sentence,” a finding 

that an immigrant “knowingly made a frivolous application for asylum” renders the immigrant 

“permanently ineligible for any benefits under” our immigration laws. 8 U.S.C. § 1158(d)(6); 

see, e.g., Yousif v. Lynch, 796 F.3d 622, 627 (6th Cir. 2015). Yet Congress understandably 

refused to impose this serious penalty on asylum seekers who file frivolous applications unless 

they receive adequate notice “of the consequences” of doing so. 8 U.S.C. § 1158(d)(4)(A), 

>
No. 19-3149 Khaytekov v. Garland Page 2

(d)(6). To fulfill this notice mandate, the government has placed the required warning about 

filing a frivolous asylum application in the standard application form itself.

Takhir Khaytekov received this written warning, but immigration judges also routinely 

give another verbal warning in court. The judge in Khaytekov’s case did not give this secondary 

warning, and Khaytekov argues that the failure to do so violated § 1158(d)’s notice requirement. 

In an earlier opinion, we opted to reject Khaytekov’s claims for relief on narrower grounds that 

avoided this statutory question. But the Supreme Court has since remanded the case for 

reconsideration in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), and we now must

confront it. We see nothing in § 1158(d)’s text that requires the additional warning that 

Khaytekov requests. And we agree with every other circuit court that has considered the issue 

by concluding that the warning in the application form itself satisfies the statute’s notice 

requirement. Because Khaytekov does not dispute that he filed a frivolous asylum application, 

he is permanently barred from obtaining any immigration “benefits.” 8 U.S.C. § 1158(d)(6). So 

our judgment remains the same after Niz-Chavez: we dismiss Khaytekov’s petition for review in 

part and deny it in part.

I

Khaytekov, a citizen of Uzbekistan, came to this country in 2001 on a temporary visa. 

After he overstayed his visa by many years, the government instituted proceedings to remove 

him. Khaytekov sought asylum. His asylum application alleged that he had been persecuted “by 

nationalist[s] and fascist[s]” in Uzbekistan because of his religion, nationality, and political 

opinion. Admin. R. (A.R.) 1313. It also asserted that Khaytekov feared “physical attacks” if he 

returned to the country. A.R. 1314.

While his removal proceedings were pending, Khaytekov married a U.S. citizen. He thus 

withdrew his request for asylum and instead applied to adjust his status to lawful 

permanent resident. This application required him to show that he was “admissible” into the 

United States. 8 U.S.C. § 1255(a). But immigrants become “inadmissible” (and so ineligible for 

adjustment of status) if they misrepresent material facts to obtain an immigration benefit. Id.

§ 1182(a)(6)(C)(i). An immigration judge found Khaytekov inadmissible on this ground because 

of a litany of lies that he told during his immigration proceedings. The judge noted, among other 
No. 19-3149 Khaytekov v. Garland Page 3

things, that Khaytekov had filed a “completely fabricated” asylum application. A.R. 390. 

Khaytekov later admitted that the application contained false information because he had not 

been persecuted in Uzbekistan and did not fear returning there. He also admitted that he 

included this false information in the application because he thought it would increase his 

chances to remain in the United States.

Yet the Attorney General has discretion to waive the inadmissibility of immigrants like 

Khaytekov who lie in their immigration proceedings if their removal would cause “extreme 

hardship” to certain relatives in the United States. 8 U.S.C. § 1182(i)(1). Khaytekov requested 

this waiver. The immigration judge denied it for three reasons. The judge held that Khaytekov 

had knowingly filed a frivolous asylum application, which rendered him “permanently 

ineligible” for any benefits under the immigration laws. Id. § 1158(d)(6). The judge next found 

that Khaytekov’s wife would not suffer extreme hardship from his removal. The judge lastly 

determined that Khaytekov’s repeated falsehoods showed that he did not warrant a favorable 

exercise of the Attorney General’s discretionary waiver authority. Ultimately, the judge 

described Khaytekov as “one of the most remarkably and demonstrably dishonest people with 

whom this Court has dealt in well over 30 years of experience on the bench.” A.R. 392–93.

Khaytekov appealed to the Board of Immigration Appeals. In addition to challenging the 

immigration judge’s opinion, he filed motions to remand based on new precedent and new 

evidence and a motion for the Board to appoint a three-judge panel. As relevant now, he moved 

to remand on the ground that a recent Supreme Court decision made him eligible for cancellation 

of removal. See Pereira v. Sessions, 138 S. Ct. 2105 (2018). This relief allows the Attorney 

General to cancel the removal of immigrants who meet various requirements, including that they 

have been physically present in the United States for 10 years. 8 U.S.C. § 1229b(b)(1)(A). 

Under a rule that has come to be called the “stop-time rule,” immigrants must satisfy the 

requirement of 10 years’ physical presence on the date that the government serves them with a 

“notice to appear” commencing their removal proceedings. Id. § 1229b(d)(1). In Pereira, the 

Supreme Court held that an invalid notice to appear that does not contain all necessary 

information (including the date and location of the removal hearing) cannot stop this 10-year 

clock. See 138 S. Ct. at 2110. The decision thus gave immigrants who receive invalid notices to 

appear more time to satisfy the 10-year presence requirement because the clock will continue to 
No. 19-3149 Khaytekov v. Garland Page 4

run until they receive a valid notice to appear. Khaytekov claimed that he received an invalid 

notice without the required date and location information and thus that he had been in the 

country for 10 years. He argued that he qualified for cancellation of removal after Pereira.

The Board denied Khaytekov’s motions and upheld the immigration judge’s decision. 

Despite Khaytekov’s request for a remand to apply for cancellation of removal, it distinguished 

Pereira on the (mistaken) ground that Khaytekov did not seek that form of relief. It next found 

that the immigration judge properly held that Khaytekov’s frivolous asylum application 

disqualified him from any benefits under the immigration laws. See 8 U.S.C. § 1158(d)(6). And 

even if the judge was wrong in that regard, the Board also agreed that Khaytekov did not deserve 

a discretionary waiver of the ban on adjustment of status that applies to immigrants who lie in 

their removal proceedings. See id. § 1182(i)(1).

Khaytekov petitioned this court to review the Board’s order. We originally dismissed his 

petition in part and denied it in part. Khaytekov v. Barr, 794 F. App’x 497, 503 (6th Cir. 2019). 

We held that we lacked jurisdiction to consider the Board’s denial of Khaytekov’s motion to 

remand for the consideration of new evidence, and we found that the Board had properly denied 

his motion to appoint a three-member panel. Id. at 499–501. Although we next recognized that 

the Board had wrongly distinguished Pereira on the ground that Khaytekov was not seeking 

cancellation of removal, we found its misstatement harmless because Khaytekov was still 

ineligible for that relief. Id. at 502. Under our then-existing precedent, the government could 

trigger the cancellation-of-removal statute’s “stop-time rule” by sending a second notice to an 

immigrant that included the date and location information missing from the first notice. Id.

(citing Garcia-Romo v. Barr, 940 F.3d 192, 199–203 (6th Cir. 2019)). Because Khaytekov had 

not been in this country for 10 years when he received a second notice, he remained ineligible for 

cancellation of removal under Garcia-Romo. Id. We lastly declined to consider Khaytekov’s 

argument that he had not filed a frivolous asylum application because he could not obtain any of 

his requested remedies no matter how we ruled on that more far-reaching issue. Id. at 502–03.
No. 19-3149 Khaytekov v. Garland Page 5

After our decision, the Supreme Court overruled Garcia-Romo in Niz-Chavez. NizChavez held that only a single document could qualify as a “notice to appear” that triggered the 

“stop-time rule.” See 141 S. Ct. at 1480–85. It thus rejected Garcia-Romo’s holding that the 

government could trigger that rule by sending multiple notices containing all necessary 

information. Id. Khaytekov had petitioned the Supreme Court for certiorari on this question. 

The Court granted his petition, vacated our judgment, and remanded this case for reconsideration 

in light of Niz-Chavez. See Khaytekov v. Garland, 141 S. Ct. 2591, 2592 (2021).

II

As we noted in our last opinion, the Board mistakenly stated that Khaytekov had not 

sought cancellation of removal because he requested that relief in a motion to remand. 

Khaytekov, 794 F. App’x at 502. Our prior opinion found this misstatement harmless on the 

ground that Khaytekov could not satisfy cancellation of removal’s physical-presence 

requirement. As the government concedes, Niz-Chavez rejected this part of our reasoning. 

Immigration authorities did not send Khaytekov a single document with all of the information 

that a notice to appear must contain. Under Niz-Chavez, then, he never received a valid “notice 

to appear” that triggered the stop-time rule, and he had lived in the country for the 10-year period 

required to qualify for cancellation of removal by the end of his removal proceedings. See 

8 U.S.C. § 1229b(b)(1)(A). Nevertheless, the Board’s misstatement continues to be harmless, so 

we need not remand to allow it to consider Khaytekov’s request. He remains ineligible for 

cancellation of removal on a distinct ground: the Board correctly held that he filed a frivolous 

asylum application.

A

“Refugees” who will face persecution in their home countries because of various 

protected traits (such as their religion or political opinion) may ask the Attorney General to grant 

them asylum. 8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42)(A). To deter meritless asylum 

requests, however, the asylum statute imposes a significant penalty on the filing of frivolous 

applications:

If the Attorney General determines that an alien has knowingly made a frivolous 

application for asylum and the alien has received the notice under paragraph 
No. 19-3149 Khaytekov v. Garland Page 6

(4)(A), the alien shall be permanently ineligible for any benefits under this 

chapter, effective as of the date of a final determination on such application.

Id. § 1158(d)(6). This text in paragraph (d)(6) imposes two general requirements before the 

government can permanently bar immigrants from obtaining any immigration-related “benefits.” 

To begin with, an immigrant must have “knowingly made a frivolous application.” Id. Next, the 

immigrant must have “received the notice under paragraph (4)(A).” Id. Paragraph (4)(A), in 

turn, requires “the Attorney General” to “advise” immigrants “[a]t the time of filing an 

application for asylum” “of the consequences, under paragraph (d)(6), of knowingly filing a 

frivolous application for asylum[.]” Id. § 1158(d)(4)(A).

When the Board concludes that paragraph (d)(6)’s penalty applies to an asylum seeker 

due to a frivolous application, we review any underlying factual findings (such as the finding that 

the asylum seeker acted with the required knowledge) under the deferential substantial-evidence 

test. See Lazar v. Gonzales, 500 F.3d 469, 474–75 (6th Cir. 2007); see also Alexandrov v. 

Holder, 475 F. App’x 41, 46, 48–49 (6th Cir. 2012). But we review any legal conclusions (such 

as a conclusion about the proper meaning of the language in § 1158(d)(6)) de novo. See Yousif, 

796 F.3d at 628.

B

This statutory scheme bars Khaytekov’s request for cancellation of removal. At the 

outset, he does not dispute two things necessary to trigger paragraph (d)(6)’s penalty. Khaytekov 

does not challenge the finding that his application was “frivolous” within the meaning of that 

paragraph. 8 U.S.C. § 1158(d)(6); see 8 C.F.R. § 1208.20(a)(1). Khaytekov also does not 

dispute that cancellation of removal qualifies as one of the “benefits” that he cannot obtain if he 

knowingly made a frivolous application. 8 U.S.C. § 1158(d)(6); cf. Albu v. Holder, 761 F.3d 

817, 819 (7th Cir. 2014); Aziz v. Gonzales, 478 F.3d 854, 858 (8th Cir. 2007). Khaytekov 

instead argues that he never “filed” or “made” his application and that, in any event, he did not 

receive adequate notice of the consequences of filing a frivolous application. We will discuss 

each argument in turn.
No. 19-3149 Khaytekov v. Garland Page 7

1

Khaytekov initially asserts that he only “lodged” his asylum application (and did not 

“file” it) with the immigration court. In his view, this fact means that he never “made a frivolous 

application” (under paragraph (d)(6)), and that he was never advised of the consequence of 

“knowingly filing a frivolous application” “[a]t the time of filing” (under paragraph (d)(4)(A)). 

His claimed distinction between lodging and filing rests on the standard I-589 asylum 

application. 8 C.F.R. § 1208.3(a). An immigrant must sign this application and certify its 

accuracy in Part D of the form. A.R. 1317. Immigrants also typically sign either Part F or Part 

G at some later time. Part F covers immigrants who apply for asylum before the government has 

initiated proceedings against them. These applicants reaffirm the accuracy of their applications 

by signing Part F during interviews with asylum officers. A.R. 1318. Part G covers immigrants 

who (like Khaytekov) apply for asylum after the government has initiated those proceedings. 

These applicants reaffirm the accuracy of their applications by signing Part G during a hearing 

before an immigration judge. Id. Khaytekov claims that immigrants do not officially “make” or 

“file” applications under paragraphs (d)(4)(A) and (d)(6) until they sign Part F or Part G. And 

because he submitted his application to the immigration court without signing Part G, his 

argument goes, he never “made” or “filed” it (even if it was frivolous).

Neither the law nor the facts support this reading. Legally, Khaytekov identifies nothing 

in the asylum statute or its implementing regulations that treats an asylum application as unfiled 

(or merely “lodged,” in his words) until an immigrant signs Part F or Part G. The asylum statute 

tells the Attorney General to “establish” the “procedure” for processing applications. 8 U.S.C. 

§ 1158(d)(1). The applicable regulation at the relevant time said nothing about “lodging” 

applications. 8 C.F.R. § 1208.4(b) (2008). Rather, it ordered immigrants to “file” their 

applications in different ways, depending on their circumstances. If an immigrant was not yet in 

immigration proceedings, applications needed to “be filed directly by mail” to the relevant 

asylum office’s service center. Id. § 1208.4(b)(1). If an immigrant was already in proceedings, 

applications needed to “be filed directly with the” immigration court. Id. § 1208.4(b)(3). The 

rules of procedure of these courts further clarified only that applications “must be filed with the 

Immigration Court having administrative control over the Record of Proceeding.” 8 C.F.R. 

§ 1003.31(a) (2008). (The courts have since begun to transition to electronic filing. 86 Fed. 
No. 19-3149 Khaytekov v. Garland Page 8

Reg. 70,708 (Dec. 13, 2021).) Khaytekov identifies no other specific regulatory guidance on the 

mechanics of these court filings. Under the usual understanding of the word, though, a party 

“files” a “legal document” with a court by “deliver[ing]” it “to the court clerk or record custodian 

for placement into the official record.” Black’s Law Dictionary 642 (7th ed. 1999).

Factually, that is what happened here. The immigration judge and Board both found that 

Khaytekov filed his application by placing it in the official record at a hearing on February 25, 

2008. A.R. 6 n.1, 389. Substantial evidence supports this factual finding. See Lazar, 500 F.3d 

at 474–75. At the beginning of the hearing, the immigration judge inquired of Khaytekov if the 

hearing had been “set for you to file your applications for relief.” A.R. 1009. Khaytekov’s 

counsel responded, “That’s correct, Your Honor.” Id. The asylum application then made its way 

into the record. The immigration court stamped it “received in court” on February 25, 2008. 

A.R. 1309. Khaytekov had also signed Part D of the application and certified its accuracy. 

A.R. 1317. But the parties (apparently) could not immediately proceed to the application’s 

merits at this hearing because they discovered that Khaytekov had not complied with 

various fingerprinting requirements. See 8 U.S.C. § 1158(d)(1); 8 C.F.R. § 1003.47(d) (2008). 

The judge thus ended the hearing, and Khaytekov did not sign Part G.

The parties’ conduct at the next hearing after Khaytekov got married confirms that he 

filed his asylum application. His counsel asked “that Mr. Khaytekov’s I-589 be withdrawn” so 

that he could proceed with his adjustment-of-status application. A.R. 1013–14. The judge 

warned Khaytekov that he could not seek asylum again and stated that the record “will show that 

application being withdrawn.” A.R. 1014–15. Yet if Khaytekov had never filed his application, 

he would have had nothing to withdraw. And immigrants who file frivolous applications cannot 

avoid a finding that their applications were frivolous by later withdrawing them. See Lazar, 

500 F.3d at 476–77; cf. Ghazali v. Holder, 585 F.3d 289, 293 (6th Cir. 2009).

The asylum statute’s overall structure also shows that, contrary to Khaytekov’s claim, 

parties can “file” asylum applications even if they have not signed Parts F or G. We presume 

that a word like “file” bears the same meaning when used more than once in the same section. 

See Mohasco Corp. v. Silver, 447 U.S. 807, 815–17, 826 (1980); Antonin Scalia & Bryan A. 

Garner, Reading Law: The Interpretation of Legal Texts 170–73 (2012). And two other uses of 
No. 19-3149 Khaytekov v. Garland Page 9

this word in § 1158 suggest that immigrants “file” their applications before the interviews or 

hearings at which they sign Part F or Part G. Although the statute allows the Attorney General to 

establish claims-processing rules, it adds that, “in the absence of exceptional circumstances, the 

initial interview or hearing on the asylum application shall commence not later than 45 days after 

the date an application is filed[.]” 8 U.S.C. § 1158(d)(5)(A)(ii) (emphasis added). 

This provision contemplates that an application’s filing will occur before the initial interview or 

hearing.

Likewise, the asylum statute generally bars relief unless an “application has been filed

within 1 year” of an immigrant’s arrival in the United States. Id. § 1158(a)(2)(B) (emphasis 

added). Khaytekov’s reading creates the risk that immigrants will file untimely applications 

through no fault of their own. Suppose an asylum seeker who has yet to be placed in 

immigration proceedings files an application through the mail. 8 C.F.R. § 1208.4(b)(1). 

Suppose further that the government receives the mailed application 350 days after the 

applicant’s entry into the United States, but an officer does not schedule an interview for 40 days 

(at which point the applicant signs Part F). Did the applicant “file” an untimely application 

because this signature occurred over a year after entry? Under the relevant regulation, the 

answer is a resounding “no” because the filing occurred earlier. Id. § 1208.4(a)(2)(ii). Yet 

Khaytekov’s reading would lead to the contrary result.

Khaytekov nevertheless says that a different regulation compels his interpretation. 

Id. § 1208.3(c)(3). This regulation directs immigration courts to reject “incomplete” asylum 

applications and treats an application as “incomplete” if an immigrant does not respond to all 

required questions, pay the required fees, or sign the application. Id. Khaytekov asserts that 

applications remain “incomplete” under this regulation until applicants also sign Part F or Part G, 

so he argues that the immigration judge should have rejected his application for filing until he 

signed Part G. But the application itself directs immigrants not to complete Part F or Part G until 

their interview or hearing after they have already filed it. A.R. 1318. So the absence of this 

second signature did not render the application “incomplete” for filing and did not provide a 

basis for rejecting the application under § 1208.3(c)(3).
No. 19-3149 Khaytekov v. Garland Page 10

In short, Khaytekov “made” and “filed” his application under the relevant provisions 

when he submitted it for entry into the record on February 25, 2008. And nothing in the statute 

or regulations required him to sign Part G for his application to be considered “made” or “filed.”

2

Even if he did make a frivolous application, Khaytekov next argues, that fact would 

satisfy only one of the two statutory requirements for triggering paragraph (d)(6)’s penalty. The 

government also must show that he “received the notice under paragraph (4)(A).” 8 U.S.C. 

§ 1158(d)(6). Yet Part D of the application itself provided this notice. A.R. 1317. Just above 

Khaytekov’s signature, this part contains a standard (and bolded) “WARNING” in which 

immigration authorities informed Khaytekov: “Applicants determined to have knowingly made a 

frivolous application for asylum will be permanently ineligible for any benefits” under the 

immigration laws. Id. The warning noted further: “You may not avoid a frivolous finding 

simply because someone advised you to provide false information in your asylum application.” 

Id. In addition, Khaytekov marked that his attorney prepared the application for him. Id. His 

attorney signed a separate certification indicating that “the completed application was read to the 

applicant in his or her native language or a language he or she understands for verification before 

he or she signed the application in my presence.” Id. This combination of warnings and 

signatures refutes Khaytekov’s claim that he did not “receive[]” the required “notice.” 8 U.S.C. 

§ 1158(d)(6).

Khaytekov responds that most applicants who are in immigration proceedings typically 

get another verbal warning from an immigration judge at the hearing at which they both file their 

application and sign Part G. Cf. Brushtulli v. Holder, 594 F. App’x 282, 286 (6th Cir. 2014); 

Ceraj v. Mukasey, 511 F.3d 583, 589 (6th Cir. 2007). When they sign Part G, asylum seekers 

likewise reaffirm that they know of the consequences of filing a frivolous application. A.R. 

1318. But the record in this case contains no evidence that the immigration judge gave any 

additional verbal warning, and Khaytekov did not fill out Part G. Id. Because Khaytekov did 

not receive this secondary warning, he claims that he lacked legally sufficient notice under 

paragraph (d).
No. 19-3149 Khaytekov v. Garland Page 11

Both text and precedent rebut his interpretation. Nothing in paragraph (d)(6)’s language 

requires immigration judges to give verbal notice on top of the application’s written notice. 

According to the paragraph, Khaytekov must have “received the notice under paragraph 

(4)(A)[.]” 8 U.S.C. § 1158(d)(6). The “under” in this paragraph likely means “in accordance 

with” or “according to.” Pereira, 138 S. Ct. at 2117 (quoting 18 Oxford English Dictionary 950 

(2d ed. 1989); Black’s Law Dictionary 1525 (6th ed. 1990)). And the application’s standard 

written notice is “in accordance with” the notice described in paragraph (d)(4)(A). The notice 

warned Khaytekov of the “consequences” “of knowingly filing a frivolous application”—

namely, that he would be “permanently ineligible for any benefits” under the immigration laws. 

8 U.S.C. § 1158(d)(4)(A), (d)(6); A.R. 1317. And although paragraph (d)(4)(A) says that the 

“Attorney General shall” “advise” asylum seekers of these consequences, it does not dictate a 

verbal warning over a written one or otherwise identify the manner in which he must do so. 

Similarly, although the Attorney General did not personally deliver this written notice to 

Khaytekov, the immigration laws have long allowed him to “delegate such authority” as he 

deems appropriate to subordinates. 8 U.S.C. § 1103(g)(2). That is why, for example, an 

immigration judge rather than the Attorney General typically “determines” whether an asylum 

seeker “has knowingly made a frivolous application” under paragraph (d)(6). See 8 C.F.R. 

§ 1003.10(a).

Perhaps Khaytekov’s best textual counterargument concerns the required timing of this 

notice. Paragraph (d)(4)(A) suggests that immigration authorities must “advise” asylum seekers 

of the relevant consequences at a specific time: “[a]t the time of filing an application[.]” 

8 U.S.C. § 1158(d)(4). If Khaytekov received the warning when his attorney reviewed the 

application with him at some unknown earlier point, does this written notice qualify as given “at 

the time” of the application’s filing during his February 2008 hearing? We think so. Because 

the authorities made the written warning a part of the application itself, the warning does not 

disappear at the time of filing. Rather, it gets filed along with the rest of the application. See 

Cheema v. Holder, 693 F.3d 1045, 1050 (9th Cir. 2012). The warning exists just as much at that 

time as it did when the applicant initially filled out and signed the application form.

The statutory structure confirms this point. As noted, it contemplates that a “filing” can 

occur before any in-person interview or hearing. See 8 U.S.C. § 1158(d)(5)(A)(ii). So asylum 
No. 19-3149 Khaytekov v. Garland Page 12

seekers who are not yet in immigration proceedings file their applications through the mail. 

8 C.F.R. § 1208.4(b)(1). How else can immigration authorities provide these applicants with the 

required notice “at the time of filing” but through a written notice on the application itself? See 

Niang v. Holder, 762 F.3d 251, 254 (2d Cir. 2014) (per curiam). A contrary reading would 

effectively compel in-person filings in all cases—even though nothing in the statute suggests that 

requirement and even though a regulation has long required mail filings in certain settings. 

By making filing more burdensome, moreover, such a rule might harm applicants more than it 

helps them, especially considering that they must file their applications within a year of entry 

into the United States. See 8 U.S.C. § 1158(a)(2)(B).

Precedent points in the same direction. Six other circuit courts have held that the asylum 

application’s written warning satisfies paragraph (d)’s notice requirements. See Ndibu v. Lynch, 

823 F.3d 229, 234–36 (4th Cir. 2016); Niang, 762 F.3d at 253–55; Ruga v. U.S. Att’y Gen., 

757 F.3d 1193, 1196–97 (11th Cir. 2014); Pavlov v. Holder, 697 F.3d 616, 618 (7th Cir. 2012); 

Cheema, 693 F.3d at 1048–49; Ribas v. Mukasey, 545 F.3d 922, 928–30 (10th Cir. 2008). As 

these courts explained, an immigration judge has discretion to give a verbal warning at the start 

of an immigration hearing, but nothing in the statute requires the judge to do so if an applicant 

received the application’s written warning. See Ndibu, 823 F.3d at 236; Niang, 762 F.3d at 254.

Admittedly, these six cases involved immigrants who (unlike Khaytekov) had applied for 

asylum before immigration authorities initiated removal proceedings against them. After the 

immigrants filed their applications, therefore, asylum officers gave an additional verbal warning 

during their asylum interviews (and some immigrants appear to have signed Part F of the 

application acknowledging the consequences of frivolous filings). See Ndibu, 823 F.3d at 230, 

234; Niang, 762 F.3d at 252; Ruga, 757 F.3d at 1195; Pavlov, 697 F.3d at 618; Cheema, 

693 F.3d at 1046–47; Ribas, 545 F.3d at 924. Khaytekov claims that these decisions rely on this 

secondary warning as the ground for finding the statutory notice mandate satisfied. And since he 

received only the application’s written warning, he claims, his notice falls short under their logic.

Although Khaytekov is correct on his factual claim that the immigrants in these other 

cases received an additional warning, he is wrong on his legal claim about the scope of their 

holdings. The cases all hold, quite explicitly, that “the notice set forth in the I-589 application 
No. 19-3149 Khaytekov v. Garland Page 13

for asylum suffices to satisfy the requirement under § 1158(d)(4)(A) that the applicant be 

notified of the consequences of filing a frivolous application.” Ndibu, 823 F.3d at 236; see also

Niang, 762 F.3d at 254; Ruga, 757 F.3d at 1197; Pavlov, 697 F.3d at 618; Cheema, 693 F.3d at 

1049; Ribas, 545 F.3d at 930. None of the decisions rested on the secondary warning. The 

Tenth Circuit even questioned whether that later warning gave “meaningful notice at all” 

because the immigrant received it only after he had filed his application—not at the time of 

filing. Ribas, 545 F.3d at 930. Just as the immigrants in these cases had adequate notice when 

they mailed in their applications, so too Khaytekov had adequate notice when he submitted his 

application to the immigration court.

To be sure, these courts recognized the possibility that this written warning might not 

suffice if an applicant did not adequately learn of it—say, because the applicant does not speak 

English and the person who completed the application did not pass along this information. See, 

e.g., Ndibu, 823 F.3d at 235 n.4; Niang, 762 F.3d at 254 n.1; Cheema, 693 F.3d at 1049 n.4. In 

that respect, Khaytekov suggested at his final hearing that his lawyer failed to go over his 

application with him before he signed it. A.R. 472–77. At an earlier hearing, however, 

Khaytekov testified to the contrary—that his attorney did, in fact, review the application with 

him. A.R. 1064. And the attorney attested to having done so on the application itself. A.R. 

1317. So substantial evidence supports the conclusion that Khaytekov received the required 

notice. See Pavlov, 697 F.3d 618–19.

* * *

In sum, the Supreme Court’s decision in Niz-Chavez overturned our earlier conclusion 

that Khaytekov could not obtain cancellation-of-removal relief because he could not satisfy that 

relief’s physical-presence requirement. Even after that decision, however, Khaytekov remains 

ineligible for cancellation of removal because he filed a frivolous asylum application. And NizChavez does not affect any other aspect of our earlier opinion, so we simply incorporate the other 

parts by reference. See Khaytekov, 794 F. App’x at 499–501.

We dismiss Khaytekov’s petition for review in part and deny it in part.