[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 11828 Non

- Argument Calendar

________________________

Agency No. A095

- 291

- 158

HUIWEN CHEN, Petitioner,

versus U.S. ATTORNEY GENERAL, Respondent.

________________________ Petition for Review of a Decision of the Board of Immigration Appeals

________________________ ( January 4, 2016 ) Before WILSON , WILLIAM PRYOR and ROSENBAUM , Circuit Judges. PER CURIAM:

Case: 15-11828 Date Filed: 01/04/2016 Page: 1 of 52 Huiwen Chen , a native and citizen of China, petitions for review of a decision affirming his order of removal

. The Board of Immigration Appeals agreed with the decisions of the immigration judge to reopen Chen’s removal proceeding and terminate his status as an asyl ee for knowingly ma king a frivolous application , 8 U.S.C

. § 1158(d)(4), (d)(6) , and to deny Chen’s motion to t erminate his removal proceeding

. Chen argues that the immigration judge “ignored the requirement that the Department must establish by a preponderance of the evid ence that [he] knowingly filed” a frivolous application; that t he immigration judge should have terminated the removal proceeding ; and that he is entitled to withholding of removal. We deny in part and dismiss in part Chen’s petition.

“ We review de novo the statutory interpretation finding by the Board that [ an alien has ] filed a frivolous asylum application under Section 1158(d)(6) .”
Barreto

- Claro v. U.S. Att’y Gen. , 275 F.3d 1334, 1338 (11 th Cir. 2001). The regulations provide a process for a n immigrat ion judge to follow in de termin ing whether an application is frivolous. See 8 C

. F

. R

. § 208.20. Th at framework is designed to safeguard procedural rights, which includes ensuring that the immigration judge “ plac [ e s] the ultimate bu rden of proof on the Government, ” Matter of Y

- L

- , 24 I. & N. Dec. 151, 158 (BIA 2007) , to establish, by a preponderance of the evidence, that there was “ fraud in the alien ’ s application such that [ he ] was not eligible for asylum at the time it was granted ,” 8 C.F.R.

Case: 15-11828 Date Filed: 01/04/2016 Page: 2 of 53 § 1208.24 (a)(1), (f). If the immigration judge complies with the safeguards and finds that the alien knowingly filed a frivolous application aft er being advised of the consequences of such wrongdoing, the alien is permanently ineligible to receive benefits under th e Immigration and Nationality Act . 8 U.S.C. § 1158(d)(6).
T he Board did not err in determinin g t hat the i mmigration j udge “placed the burden” of proof on the Department and that it “met its burden” to prove that Chen’s application was frivolous. At the commencement of the hearing to terminate, t he Department submitt ed a forensic report establishi ng that Chen’s card was counterfeit ; a transcript of Chen’s interview in April 2002 during which he signed an oath acknowledging that he would be “permanently in eligible” for benefits if he filed a “frivolous application for asylum ” ; and a copy of the application that Chen fil ed in September 2002. T he report stated that Chen’s identity card had been created using a different “production method” and that it lacked the “security features” and “fine details” of cards issued by the Chinese government. And t he Department r ebutt ed Chen ’s testi mony that he did not think the card was forged because he obtained i t from the Shouquan police station. As the Board stated , the Department “ [brought ] forward evidence regarding [ C hen’s] knowledge and intentions” through establishing that he had su pport ed his application with a nother document of dubious authenticity

. T he forensic report
stat ed that a subpoena , suppose dly issued by the Chinese police t o requir e Chen to

Case: 15-11828 Date Filed: 01/04/2016 Page: 3 of 54 appear for questioning “for his illegal congregation and illegal preach [sic] gospel , ” was “suspect” because it was printed using “toner technology,” which was “inconsistent with the production of high vo lume forms.” The Board also did not err in affirming the den ial of Chen’s motion to terminate his removal proceeding

. The immigration judge was entitled to reopen Chen’s removal proceeding to determine if there was fraud in his application that warranted terminating his asylum status. See 8 C.F.R. § 1208.24 (a)(1), (f). Chen argues that he was entitled to terminate the removal process and to adjust his status based on the asylum granted to his wife , but Chen ’s filing of a friv olous asylum application made him “permanently ineligible ” to benefit from his spous e’s change in status

. See 8 U.S.C. § 1158( d)(6). We lack jurisdiction to consider Chen ’s argu ment that he is entitled to withholding o f removal

. “[A] court may review a final order of removal only if

. . . the alien has exhausted all administrative remedies available to [him] as of right.” Sundar v. INS , 328 F.3d 1320, 1323 (11th Cir. 2003) (quoting 8 U.S.C. § 1252(d)(1)). Chen argues that he provided a cre dible account of past persecution based on his religious belief s , but Chen failed to present this argument to the Board. “ [A] bsent a cognizable excuse or exception,” we “lack jurisdiction to consider a claim raised in a pe tition for review [when] the petitioner has [failed to]

Case: 15-11828 Date Filed: 01/04/2016 Page: 4 of 55 exhaust[ ] his administrative remedies

. ” Amaya

– Artunduaga v. U

. S. Att ’ y Gen. , 463 F.3d 1247, 1250 (11th Cir. 2006) . W e dismiss this part of C hen’s petition

. PETITION DENIED IN PART AND DISMISSED IN P ART

. Case: 15-11828 Date Filed: 01/04/2016 Page: 5 of 5