RONG GAO, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent, 622 F. App'x 91

SUMMARY ORDER Rong Gao, a native and citizen of China, seeks review of a December 10, 2012, decision of the BIA affirming the June 15, 2011, decision of an Immigration Judge (“IJ”) that she had filed a frivolous asylum application. In re Rong Gao, No. [ AXXX XXX XXX ] (B.I.A. Dec. 10, 2012), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Jun. 15, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of this case. Because the BIA summarily affirmed the decision of the IJ, we have reviewed the IJ’s decision. Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir.2008).

The standards of review are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009).

In finding Gao’s asylum application frivolous, within the meaning of 8 U.S.C. § 1158(d)(6), the IJ complied with the requirements that she must: (1) give Gao notice of the consequences of filing a frivolous application; (2) make a specific finding that Gao knowingly filed a frivolous application; (3) identify sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) allow Gao sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Mei Juan Zheng v.

Mukasey, 514 F.3d 176, 180 (2d Cir.2008) (citing Matter of Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A.2007)); see also Matter of B-Y-, 25 I. & N. Dec. 236, 241-42 (B.I.A.2010). Gao argues that she timely recanted her testimony and that the IJ erred by finding her application frivolous despite the recantation. Although it is an open issue whether timely and voluntary recantation can relieve an asylum applicant of the consequences of a frivolous filing, the record does not establish that Gao’s recantation was either vohmtary or timely.

A review of the record reveals that Gao filed her asylum application in 2010, she was informed of the consequences of filing a frivolous application, and she affirmed to the IJ that her application was “true.” She subsequently testified in conformity with her false application at her merits hearing, and she did not admit that she had fabricated her claim and testimony until she was confronted during cross-examination with documentation that essentially established her story was untrue. Under these circumstances, it cannot be said that her recantation was timely and voluntary. See Matter of M—, 9 I. & N.

Dec. 118, 119 (B.I.A.1960). As to Gao’s due process claim, given her admission that she fabricated portions of her application and our prior holding that “summary affirmance of IJ decisions by a single Board member does not deprive an asylum applicant of due process,” Gao has not established any error in the BIA’s use of

summary affirmance. Yu Sheng Zhang v. U.S. DOJ, 362 F.3d 155, 157 (2d Cir.2004). For the foregoing reasons, the petition for review is DENIED.