Case: 19-60446 Document: 00515665967 Page: 1 Date Filed: 12/08/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 19-60446 Summary Calendar FILED December 8, 2020 Lyle W. Cayce Grace Wanjiku Njenga, Clerk Petitioner, versus William P. Barr, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A097 871 620 Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curiam:* Proceeding pro se, Grace Wanjiku Njenga, a native and citizen of Kenya, seeks review of the Board of Immigration Appeals’ (BIA) dismissal of her appeal from the Immigration Judge’s (IJ) denial of, inter alia, adjustment of status and order of removal. Njenga maintains the BIA * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60446 Document: 00515665967 Page: 2 Date Filed: 12/08/2020 No. 19-60446 improperly adopted the IJ’s finding that she filed a frivolous asylum application and is, therefore, statutorily ineligible for adjustment of status. Her claim fails. In considering the BIA’s decision (and the IJ’s decision, to the extent it influenced the BIA), our court reviews legal conclusions de novo and factual findings for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511, 517–18 (5th Cir. 2012). Under the substantial evidence standard, “petitioner has the burden of showing that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion”. Id. at 518 (internal quotation marks and citation omitted). Under 8 U.S.C. § 1158(d)(6), if an alien knowingly makes a frivolous application for asylum, the alien “shall be permanently ineligible” for any immigration benefits. “[A]n asylum application is frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20. Deliberate fabrication requires knowingly and intentionally misrepresenting the truth. Matter of Y-L-, 24 I. & N. Dec. 151, 156 (B.I.A. 2007). A misrepresentation is material if it “has a natural tendency to influence . . . the decision of the decisionmaking body to which it was addressed”. Kungys v. United States, 485 U.S. 759, 770 (1988) (internal quotation marks and citation omitted). In affirming the IJ’s finding that Njenga filed a frivolous asylum application, the BIA noted inconsistencies regarding an alleged attack on Njenga and her family in Kenya. In her application, Njenga stated she was asleep at home with her husband, Bernard, and her two children, Roy and Jessica, when they were attacked by members of the Mungiki sect. Njenga later admitted, however, that Jessica was not her daughter but her sister. She also explained she was separated and not living with Bernard at the time of the attack. Njenga contends: the BIA failed to consider Kenya’s informal guardianship custom whereby it is common for older children to raise 2 Case: 19-60446 Document: 00515665967 Page: 3 Date Filed: 12/08/2020 No. 19-60446 younger siblings as their own children; she did not have an opportunity ...
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