M-M-A

Cite as: 28 I&N Dec. 494 (BIA 2022) Interim Decision #4039
Matter of M-M-A-, Respondent
Decided March 11, 2022
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
When the Department of Homeland Security raises the mandatory bar for filing a
frivolous asylum application under section 208(d)(6) of the Immigration and Nationality
Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of
fact and conclusions of law on whether the requirements for a frivolousness determination
under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant
Chief Counsel
BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges.
Dissenting Opinion: GREER, Appellate Immigration Judge.
WILSON, Appellate Immigration Judge:
In a decision dated June 26, 2018, the Immigration Judge granted the
respondent’s application for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018), and his
application for a waiver of inadmissibility under section 212(i) of the Act,
8 U.S.C. § 1182(i) (2018). The Department of Homeland Security (“DHS”)
has appealed from this decision, arguing that the respondent filed a frivolous
asylum application and was therefore barred from the requested relief. See
section 208(d)(6) of the Act, 8 U.S.C. § 1158(d)(6) (2018). The appeal will
be sustained, the Immigration Judge’s decision vacated, and the record
remanded.
I. FACTUAL AND PROCEDURAL HISTORY
The following facts are undisputed. The respondent was admitted to the
United States in 2007. In August 2010, he filed an affirmative asylum
application with United States Citizenship and Immigration Services
(“USCIS”). In his application, the respondent claimed that his father was a
founder of, and held a leadership position in, the Southern Movement in
Yemen, which called for the secession of South Yemen. He stated in his
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application that he and his brother were also members of this group and that
he had been a member since 2003. The respondent claimed that his father
was being held in prison in Yemen because of his involvement in this group
and that arrest warrants had been issued for the respondent and his brother.
He further claimed that if he entered Yemen, he would immediately be
arrested and imprisoned and that he would likely be tortured. The respondent
signed the application, swearing to the truth of its contents. He attached a
declaration repeating this same claim, as well as a document purporting to be
a Yemeni arrest warrant. He attended two administrative interviews with
asylum officers and at both interviews, he swore to tell the truth. The
respondent received notice of the consequences of filing a frivolous asylum
application and acknowledged that if he filed a frivolous asylum application,
he could be “permanently ineligible for any benefits” under the Act. Section
208(d)(4)(A), (6) of the Act. USCIS denied the respondent’s application and
placed him in removal proceedings.
At the Immigration Court, the respondent sought adjustment of status
based on his marriage to a United States citizen. After the DHS stated that
the respondent might be barred from adjustment of status because his asylum
application suggests he provided material support to a terrorist group, the
respondent withdrew his asylum application. In a filing to the Immigration
Court, he stated that he had poor English skills when he filed his asylum
application and thus did not know how to properly explain what happened to
him in Yemen. He further claimed that he mischaracterized certain
information regarding his involvement with the Southern Movement in
Yemen and wished to retract the information. Acknowledging that these
misrepresentations rendered him inadmissible, he filed a Form I-601,
Application for Waiver of Grounds of Inadmissibility, seeking to waive his
inadmissibility under section 212(a)(6)(C)(i) of the Act for fraud or
misrepresentation of a material fact.
At a hearing before the Immigration Court, the respondent testified that
his written declaration and his testimony at his asylum interviews were false.
He testified that neither he nor his family were members of the Southern
Movement, his father was never imprisoned in Yemen, and an arrest warrant
was never issued for the respondent. He also admitted that he submitted a
false Arabic language arrest warrant. He testified that although his friends
completed his asylum application, he lied to the asylum officers under oath.
He also testified that his work permit was going to expire and he was told
that filing the asylum application would fix the situation.
The DHS asked the Immigration Judge to find that the respondent filed a
frivolous asylum application. The Immigration Judge found that the
respondent’s asylum claim “hinged upon this false information,” which the
respondent admitted was untrue and that the misrepresentations were “both
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material and willful.” Based on the respondent’s fraudulent
misrepresentations, the Immigration Judge found that he was inadmissible
under section 212(a)(6)(C)(i) of the Act, but eligible for a waiver of
inadmissibility under section 212(i) of the Act.
Despite finding that the respondent admitted that his asylum application
was fraudulent, the Immigration Judge held that she was not required to find
that the respondent’s asylum application was frivolous or that the respondent
was permanently barred from relief under section 208(d)(6) of the Act. The
Immigration Judge declined to enter a frivolousness finding. Instead, she
determined that the respondent merited a waiver of inadmissibility and
granted his application for adjustment of status.
On appeal, the DHS argues that although it properly raised the issue of
the mandatory bar to relief based on a frivolous asylum application under
section 208(d)(6) of the Act, the Immigration Judge ignored the issue and did
not apply the analytical framework set forth in Matter of Y-L-, 24 I&N Dec.
151, 155–60 (BIA 2007). It further argues that when it raises the
frivolousness issue, an Immigration Judge is required to make the relevant
findings of facts and conclusions of law regarding whether the mandatory
bar to relief applies before considering a respondent’s eligibility for relief.
II. ANALYSIS
The issue before this Board is whether, when the DHS alleges that an
applicant is ineligible for relief based on a frivolous asylum application, the
Immigration Judge is required to make predicate findings of fact and
conclusions of law to determine whether the requirements for a frivolous
asylum application have been satisfied. We review this legal issue de novo.
See 8 C.F.R. § 1003.1(d)(3)(ii) (2021).
Section 208(d)(6) of the Act provides:
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 (4)(A)
[of the consequences of such an application], the alien shall be permanently
ineligible for any benefits under this Act, effective as of the date of a final
determination on such application.
The implementing regulation further provides:
For applications filed on or after April 1, 1997, an applicant is subject to the
provisions of section 208(d)(6) of the Act only if a final order by an immigration
judge or the Board of Immigration Appeals specifically finds that the alien
knowingly filed a frivolous asylum application. For purposes of this section, an
asylum application is frivolous if any of its material elements is deliberately
fabricated. Such finding shall only be made if the immigration judge or the Board is
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satisfied that the applicant, during the course of the proceedings, has had sufficient
opportunity to account for any discrepancies or implausible aspects of the claim. For
purposes of this section, a finding that an alien filed a frivolous asylum application
shall not preclude the alien from seeking withholding of removal.
8 C.F.R. § 1208.20 (2020).
A frivolousness finding “is a preemptive determination which, once
made, forever bars an alien from any benefit under the Act.” Matter of Y-L-,
24 I&N Dec. at 157. Given the serious consequences of a frivolousness
finding, specific requirements must be met before an Immigration Judge or
the Board can enter such a determination. Id. at 155. Among these is a
specific finding that a respondent “knowingly and deliberately fabricated
material elements of the claim.” Id. at 156–57; see 8 C.F.R. § 1208.20.
Either an Immigration Judge or the DHS can raise the issue of a frivolous
asylum application. See Matter of Y-L-, 24 I&N Dec. at 159–60. However,
an “Immigration Judge is not required to evaluate whether an application is
frivolous if the [DHS] does not raise the issue.” Matter of X-M-C-, 25 I&N
Dec. 322, 324 n.1 (BIA 2010).
Where, as here, the DHS argues that the mandatory bar for filing a
frivolous asylum application applies, the Immigration Judge errs in not
addressing the issue and making sufficient factual findings on whether the
requirements for a frivolousness determination have been met. Immigration
Judges must make sufficient findings of fact and conclusions of law on issues
raised before them to ensure the Board can conduct effective appellate
review. See Matter of A-P-, 22 I&N Dec. 468, 474 (BIA 1999) (stating that
the Immigration Judge’s decision must provide the Board with adequate
means of performing its “primary appellate function of reviewing the bases
stated for the Immigration Judge’s decision in light of the arguments
advanced on appeal”).
During removal proceedings, when the DHS raises an issue of statutory
eligibility for relief, an Immigration Judge may not grant relief without
addressing that issue. “We think it goes without saying that [Immigration
Judges] . . . are not free to ignore [potentially dispositive] arguments raised
[before them].” Sanchez Rosales v. Barr, 980 F.3d 716, 719 (9th Cir. 2020)
(quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)); cf. INS
v. Bagamasbad, 429 U.S. 24, 25–26 (1976) (holding that Immigration Judges
are not required to address issues that are not dispositive). In fact, the United
States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case
arises, has stated that Immigration Judges and the Board err when we ignore
potentially dispositive arguments or evidence presented. See Vitug v. Holder,
723 F.3d 1056, 1064 (9th Cir. 2013); see also Cole v. Holder, 659 F.3d 762,
772 (9th Cir. 2011) (“[W]here potentially dispositive testimony and
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documentary evidence is submitted, [Immigration Judges and the Board]
must give reasoned consideration to that evidence.”).
The requirement that Immigration Judges address all issues of statutory
eligibility before granting relief is supported throughout various sections of
the Act and the regulations. For example, the Board has previously held that
under 8 C.F.R. § 1240.8(d) (2021), “where the record contains some
evidence from which a reasonable factfinder could conclude that one or more
grounds for mandatory denial of [an] application may apply,” an applicant
cannot be granted relief unless he or she demonstrates that the ground does
not apply. Matter of M-B-C-, 27 I&N Dec. 31, 37 (BIA 2017). Although the
respondent does not bear the burden of proving that the bar to relief based on
a frivolous asylum application does not apply, Matter of Y-L-, 24 I&N Dec.
at 157, the logic behind 8 C.F.R § 1240.8(d) is equally applicable to the
mandatory bar for frivolous asylum applications: If the record contains
sufficient evidence indicating that a respondent may be barred from relief
based on a frivolous asylum application and the DHS raises the issue, the
Immigration Judge cannot grant relief without determining whether the
requirements for a frivolousness finding have been met.
Likewise, section 208(b)(2)(A) of the Act and the implementing
regulations treat bars to asylum in a similar manner and thus support the
conclusion that Immigration Judges must address all issues of statutory
eligibility. For example, section 208(b)(2)(A) sets forth certain instances
where an individual who would otherwise qualify for asylum cannot be
granted relief. The regulation at 8 C.F.R. § 1208.13(c) describes these
limitations as “mandatory bars” to asylum eligibility. The asylum
regulations provide that “[u]nless otherwise prohibited in § 1208.13(c), an
immigration judge may grant or deny asylum in the exercise of discretion to
an applicant who qualifies as a refugee under section 101(a)(42) of the Act.”
8 C.F.R. § 1208.14(a) (2021) (emphasis added). Pursuant to these
regulations, an Immigration Judge may not grant asylum where a mandatory
bar applies. See, e.g., Dawson v. Garland, 998 F.3d 876, 879 n.1 (9th Cir.
2021) (recognizing that applicants convicted of a particularly serious crime
are subject to mandatory denial of asylum and withholding of removal); Ali
v. Ashcroft, 394 F.3d 780, 789 (9th Cir. 2005) (noting that a respondent is
mandatorily ineligible for asylum if he or she firmly resettles prior to entering
the United States).
Similarly, other regulations provide that an Immigration Judge must
consider issues of statutory eligibility raised by the applicant. When an
applicant files an application for asylum, an Immigration Judge is required
to consider the applicant’s statutory eligibility for withholding of removal.
See 8 C.F.R. § 1208.3(b) (2020); see also Matter of Gharadaghi, 19 I&N
Dec. 311, 316 (BIA 1985) (noting that the consideration of withholding of
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removal “is mandatory” and that an Immigration Judge cannot “ignore an
application for withholding of [removal]”). For all of these reasons, we
conclude that when the DHS raises the mandatory bar for filing a frivolous
asylum application, the Immigration Judge cannot ignore the issue raised and
must make sufficient findings of fact and conclusions of law on whether the
requirements for a frivolousness determination under Matter of Y-L-, 24 I&N
Dec. at 155–60, have been met.
The dissent argues that the Immigration Judge has the discretion not to
make a frivolousness finding. We do not find it necessary in this case to
consider whether an Immigration Judge has discretion not to enter a
frivolousness finding when the requirements under Matter of Y-L- have been
satisfied. However, an Immigration Judge has to make sufficient findings of
fact and conclusions of law to allow for review by the Board whenever an
issue is raised by the DHS. This includes, as in all discretionary analyses,
weighing all of the positive equities against the negative factors in a
particular case. 1 Although the Immigration Judge stated that there were
“significant equities” in this case, she did not meaningfully analyze all of the
negative factors. In short, she did not explain why, given the extensive and
repeated misrepresentations, the belated recantation of the fraudulent claim,
and the submission of fraudulent documents, the congressionally mandated
bar to future relief should not be applied to this respondent.
The respondent relies on Mei Juan Zheng v. Holder, 672 F.3d 178 (2d Cir.
2012), to argue that the Immigration Judge had discretion not to find that he
filed a frivolous asylum application. In Mei Juan Zheng, the Second Circuit
held that an Immigration Judge has discretion “whether to investigate if the
preconditions for entering . . . a [frivolousness] finding have been met” and
to not enter a frivolousness finding even after she determines that “an
application contains a material misstatement and that the applicant was
adequately warned.” 672 F.3d at 186.
However, because the case before us arises in the jurisdiction of the Ninth
Circuit, Mei Juan Zheng is not controlling. See Matter of Anselmo, 20 I&N
Dec. 25, 31 (BIA 1989) (“We are not required to accept an adverse
determination by one circuit court of appeals as binding throughout the
United States.”). The Ninth Circuit has recognized that the frivolous asylum
bar is a mandatory and permanent bar to relief and is intended “to prevent
[applicants] from lying to the United States government in order to obtain
benefits under the [Act].” Chen v. Mukasey, 527 F.3d 935, 940 (9th Cir.
2008). We are unaware of any precedent case law from the Ninth Circuit
1
If an Immigration Judge makes a discretionary determination regarding a frivolousness
finding, it would be subject to de novo review by the Board. See 8 C.F.R.
§ 1003.1(d)(3)(ii).
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holding that an Immigration Judge can decline to make findings regarding
this mandatory bar when the issue is raised by the DHS.
Moreover, in Mei Juan Zheng, the Second Circuit emphasized that the
Board had not issued a published decision on the issue. 672 F.3d at 186. It
noted that had we entered a published, precedential decision—as we do
now—that decision would be accorded additional deference. Id.
IV. APPLICATION TO THE RESPONDENT’S CASE
The respondent, who is college-educated and speaks English, admitted
before the Immigration Judge that he filed a fraudulent asylum application
and written declaration and lied under oath about his asylum claim at his
administrative interviews. He admitted that, contrary to his asylum claim, he
and his family were not members of the Southern Movement in Yemen and
that his father had not been imprisoned because of his membership in the
group. He further admitted that he submitted a false Arabic language arrest
warrant. The respondent only admitted the falsity of his asylum claim after
counsel for the DHS stated that if the facts stated in the respondent’s asylum
application were true, he may be barred from adjustment of status for having
provided material support to a terrorist group in Yemen. See section 245(a)
of the Act (requiring an applicant for adjustment of status to be admissible to
the United States); see also section 212(a)(3)(B)(i)(I) of the Act (stating that
a respondent who has engaged in terrorist activity, including having provided
material support to a terrorist organization, is inadmissible).
As the record demonstrates, this is not a case in which the respondent
simply lacked credibility based on inconsistent testimony. 2 The Immigration
Judge found that the respondent’s asylum claim hinged upon the information
he admitted was untrue and that the misrepresentations were both material
and willful.
2
It is a well settled principle of asylum law that an adverse credibility determination does
not necessarily warrant a finding that an applicant filed a frivolous asylum application. See
Yan Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011) (noting that discrepancies supporting
an adverse credibility finding do not necessarily demonstrate that the respondent filed a
frivolous asylum application); Fernandes v. Holder, 619 F.3d 1069, 1076 (9th Cir. 2010)
(“Our sister circuits have observed that ‘an adverse credibility determination alone cannot
support a finding of frivolousness.’”(quoting Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir.
2008) (citing cases))); Matter of X-M-C-, 25 I&N Dec. at 324 n.1 (“[T]he fact that an
adverse credibility determination is made does not in itself require the Immigration Judge
to make a separate determination on whether the application was frivolous.”); Matter of
B-Y-, 25 I&N Dec. 236, 239–40 (BIA 2010) (addressing the relationship between an
adverse credibility finding and a frivolousness finding).
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Under the implementing regulation and our prior case law, “an asylum
application is frivolous if any of its material elements is deliberately
fabricated,” and “the [I]mmigration [J]udge or the Board is satisfied that the
applicant, during the course of the proceedings, has had sufficient
opportunity to account for any discrepancies or implausible aspects of the
claim.” 8 C.F.R. § 1208.20; accord Matter of Y-L-, 24 I&N Dec at 155.
While this Board has a limited fact-finding function, we have authority
pursuant to 8 C.F.R. § 1208.20, to make a determination that the respondent
filed a frivolous asylum application. The Ninth Circuit has acknowledged
the Board’s authority set forth in this regulation. See Fernandes, 619 F.3d at
1076; Khadka v. Holder, 618 F.3d 996, 1001–02 (9th Cir. 2010); Ahir, 527
F.3d at 916–17.
However, we have also held that given the serious consequences of a
frivolousness determination, before making such a finding the Immigration
Judge should: (1) provide notice to the respondent of the consequences of
filing a frivolous application; (2) make a specific finding that the respondent
knowingly filed a frivolous application; (3) find sufficient evidence in the
record to support the finding that a material element of the asylum
application was deliberately fabricated; and (4) provide the respondent
sufficient opportunity to account for any discrepancies in his claim. Matter
of Y-L-, 24 I&N Dec. at 155; see also Ahir, 527 F.3d at 917 (adopting the
Board’s analytical framework in Matter of Y-L-). The Immigration Judge did
not determine whether the Matter of Y-L- factors were satisfied in this case.
Therefore, we will remand the record to the Immigration Judge to apply the
framework in Matter of Y-L-. If the Immigration Judge determines that these
requirements have been satisfied, she must make the necessary findings of
fact and conclusions of law and determine whether the mandatory bar
to relief applies in this case. Accordingly, the following orders will be
entered.
ORDER: The DHS’s appeal is sustained and the Immigration Judge’s
decision is vacated.
FURTHER ORDER: The record is remanded to the Immigration
Judge for further proceedings consistent with this opinion and the entry of a
new decision.
DISSENTING OPINION: Anne J. Greer, Appellate Immigration Judge
I respectfully dissent. I conclude that Immigration Judges retain
discretion over whether to initiate a frivolousness inquiry under Matter of
Y-L-, 24 I&N Dec. 151, 155–60 (BIA 2007). In my view, an Immigration
Judge is not required to engage in the frivolousness analysis, but may elect
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to do so based on her independent judgment. The majority has created an
unwarranted expansion of the application of the Immigration and Nationality
Act’s frivolousness provision, which is contrary to statute, regulations, and
case law. I would uphold the Immigration Judge’s judgment in this case and
dismiss the appeal. By not doing so, we disable Immigration Judges from
exercising their discretion in this regard.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent filed an asylum application containing false information
with the United States Citizenship and Immigration Services (“USCIS”) in
August 2010. He appeared for two interviews before the asylum office. The
asylum officer denied the respondent’s application based on a lack of
credibility and referred the case to the Immigration Court. The notice to
appear was filed with the Immigration Court in July 2011. In removal
proceedings during a master calendar hearing in November 2012, the
respondent’s counsel stated that the respondent would be seeking adjustment
of status based on an approved family-based immigrant visa petition filed by
his United States citizen wife.
At a reconvened master calendar hearing in June 2015, the Department
of Homeland Security (“DHS”) raised concerns about misrepresentations in
the asylum application. The DHS observed that these concerns were clearly
relevant to the respondent’s admissibility for purposes of statutory eligibility
to adjust his status and potentially relevant to a frivolousness finding. During
his merits hearing on October 31, 2017, the respondent elected to proceed
only with his application for adjustment of status and testified as to the falsity
of his asylum application, which he had withdrawn.
At the conclusion of the hearing, the Immigration Judge set a new hearing
date. She informed the parties that she would either issue a written decision
addressing the respondent’s adjustment of status application on the merits or
reconvene the parties if she elected to undertake the inquiry for frivolousness,
the result of which could render the respondent ineligible for adjustment of
status.
On June 26, 2018, the Immigration Judge issued her written decision
concluding that the respondent was inadmissible under section
212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), for the
material misrepresentations he had made in his asylum application. The
Immigration Judge granted the respondent’s applications for a waiver of
inadmissibility under section 212(i) of the Act and adjustment of status. The
Immigration Judge also concluded that she had discretion over whether to
make a frivolousness determination and declined to do so.
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II. ISSUE
The DHS does not challenge the Immigration Judge’s grant of the section
212(i) waiver, including her determination of extreme hardship to the
respondent’s spouse and her conclusion that the respondent merits this
waiver in the exercise of discretion. The DHS also does not dispute the
Immigration Judge’s reasons for not initiating the frivolousness inquiry. On
appeal, the only contested issue is whether the Immigration Judge, when
requested by the DHS, must make a frivolousness determination where the
respondent has made a material misrepresentation in applying for asylum. 1
That, therefore, is the issue at hand.
III. GOVERNING STATUTORY AND REGULATORY
PROVISIONS
I do not read section 208(d)(6) of the Act, 8 U.S.C. § 1158(d)(6) (2018),
or the implementing regulations as mandating an Immigration Judge to
initiate a frivolousness inquiry. Section 208(d)(6) of the Act provides:
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 (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.
The statutory language relates the command “shall” to the consequences
of making a frivolousness finding. In other words, “[i]f” the Immigration
Judge determines a frivolous application has been filed, certain consequences
“shall” follow. Section 208(d)(6) of the Act. These consequences are that
the noncitizen is “permanently ineligible for any benefits under this Act.” Id.Read in this way, the term “frivolous application” encompasses an evaluation
resulting in a conclusion that applies to benefits under the Act. The
regulations, which provide that “an applicant is subject to the provisions of
section 208(d)(6) of the Act only if a final order by an immigration judge or
the Board of Immigration Appeals specifically finds that the alien knowingly
filed a frivolous asylum application,” support this view. 8 C.F.R. §§ 208.20,
1208.20 (2020). The regulations similarly do not state that an Immigration
1
The majority treats this as if the DHS challenges the reasons that formed the basis for
the Immigration Judge’s determination not to proceed with the frivolousness inquiry. That
argument has been waived by the DHS. See Matter of Z-Z-O-, 26 I&N Dec. 586, 586 n.1
(BIA 2015) (explaining that an issue not meaningfully challenged on appeal will be deemed
waived); cf. Osmani v. Garland, 24 F.4th 617, 621–22 (7th Cir. 2022) (holding that the
Board committed legal error in considering arguments raised by the DHS for the first time
on appeal).
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Judge must make the determination, but rather that consequences result from
the determination once it is made. In the absence of a statutory or regulatory
mandate, there is no reason to impose one and doing so results in severe
consequences.
IV. CASE LAW
This reading is consistent with the law reflecting a distinction between
adverse credibility and frivolousness. Generally, an Immigration Judge will
elect to conduct a frivolousness inquiry after she is presented with an asylum
claim in immigration court that is deemed not credible and therefore denied
for failure to meet the burden of proof. However, Immigration Judges do not
necessarily apply the frivolousness standard where the claim fails for lack of
credibility. It is axiomatic that “a finding of frivolousness does not flow
automatically from an adverse credibility determination.” Yousif v. Lynch,
796 F.3d 622, 629 (6th Cir. 2015) (citation omitted); see also Matter of Y-L-,
24 I&N at 156 (BIA 2007) (citing cases for the proposition that an adverse
credibility finding does not automatically equate to a frivolousness
determination).
In determining that the adjudicator retains discretion to engage in the
frivolousness inquiry as a threshold issue, the United States Court of Appeals
for the Second Circuit has recognized that an Immigration Judge may
determine, based on the particular circumstances in a case, that an adverse
credibility finding does not warrant a frivolousness inquiry. Mei Juan Zheng
v. Holder, 672 F.3d 178, 186 (2d Cir. 2012) (stating that Immigration Judges
are not compelled “to engage in a frivolousness inquiry anytime they suspect
that the conditions for entering such a finding are present”).
In my view, this is a classic question of judgment retained by the
adjudicator. See Matter of Avetisyan, 25 I&N Dec. 688, 691 (BIA 2012)
(discussing the need for Immigration Judges and Appellate Immigration
Judges to “exercise independent judgment and discretion in considering and
determining the cases coming before them”), overruled by Matter of Castro-
Tum, 27 I&N Dec. 271 (A.G. 2018), overruled by Matter of Cruz-Valdez,
28 I&N Dec. 326 (A.G. 2021).
In addition to creating confusion about whether any material
misrepresentation must lead to a frivolousness determination, the majority’s
analysis conflates frivolousness determinations with mandatory bars to
asylum under sections 208(b)(2)(A)(i) through (vi) of the Act, which are
specifically referenced under the regulations at 8 C.F.R. §1208.13(c)(1)
(2020). Notably, the frivolousness provision is separate from these bars.
Moreover, we are not addressing asylum eligibility in this case.
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In a similar vein, we have recognized frivolousness determinations as
distinct from the mandatory bars described under the regulations at 8 C.F.R.
§ 1240.8(d) (2021). In Matter of Y-L-, 24 I&N Dec. at 157, we specified that
“[a] frivolousness finding, unlike a determination in regard to eligibility for
a particular form of relief governed by 8 C.F.R. § 1240.8(d), is a preemptive
determination which, once made, forever bars an alien from any benefit
under the Act.” In other words, the frivolousness determination generally
follows after an Immigration Judge has found a noncitizen ineligible for
asylum based on an adverse credibility finding. The frivolousness
determination can also be made when the asylum application is withdrawn,
as occurred here, and the noncitizen is questioned about the contents of the
withdrawn application. See Matter of X-M-C-, 25 I&N Dec. 322, 325–26
(BIA 2010). Thereafter, the noncitizen is ineligible for other benefits under
the Act, including adjustment of status, the relevant form of relief in this case.
Section 208(d)(6) is a unique statutory provision with far-reaching
implications, including its extension to applications outside the asylum
context, and is different from provisions which are commonly recognized as
statutory asylum bars.
I recognize the concerns about rampant fraud in immigration
proceedings, which led to the enactment of the provisions for frivolous
asylum applications under section 208(d)(6) of the Act. And, there is no
controversy surrounding the nature and extent of the misrepresentations the
respondent made in his asylum application in this case, as vividly described
by the majority. There is also no dispute that a withdrawn asylum application
can serve as the basis for a frivolousness determination. See, e.g.,
Kulakchyan v. Holder, 730 F.3d 993, 996 (9th Cir. 2013); Matter of X-M-C-,
25 I&N Dec. at 325–27.
At the same time, the consequences that follow from a frivolousness
determination are harsh and must stand up to scrutiny on judicial review.
See, e.g., Luciana v. Att’y Gen. of U.S., 502 F.3d 273, 284 (3d Cir. 2007)
(granting the petition for review, finding that the application for asylum was
not frivolous, and stating that “[b]ecause modern jurisprudence recognizes
the importance of results, it would seem that the various [Immigration
Judges] and the BIA should at least consider the consequences of the
draconian penalty attached to a finding that the application for asylum is
frivolous”). The caution that we be conscious of these consequences reflects
that we retain discretion to impose them.
V. CONCLUSION
In my view, when an Immigration Judge elects to undertake the analysis
set forth in our precedent under Matter of Y-L-, either independently or at the
505
Cite as: 28 I&N Dec. 494 (BIA 2022) Interim Decision #4039
request of the DHS, and determines that the application is frivolous, then the
plain statutory language requires the entry of a frivolousness finding as part
of the Immigration Judge’s decision. But whether the Immigration Judge
must conduct that analysis in the first place because the DHS requests it is a
different question. This key distinction was recognized by the Second
Circuit in stating that Immigration Judges “regularly exercise discretion
when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng,
672 F.3d at 186.
Requiring the adjudicator, either independently or at the request of the
DHS, to engage in this analysis because the respondent made a material
misrepresentation upends current practice by creating a rigid structure not
mandated by statute. It equates adverse credibility with frivolousness, which
I view as conflicting with the case law. It also removes discretion from the
Immigration Judge and transfers it to the DHS. Accordingly, the majority’s
interpretation constitutes an unwarranted expansion of the frivolousness
provisions.
Although the majority casts this question in terms of whether an
Immigration Judge may “ignore” a mandatory bar to asylum, the question is
whether the Immigration Judge has the authority to make a judgment about
pursuing a frivolousness inquiry. This Immigration Judge did not ignore a
request from DHS to consider frivolousness. Rather, she entertained it and
made an independent judgment not to proceed based on particular facts and
circumstances in this case after deliberation. As discussed, the DHS did not
question the judgment she made, which is a critical distinction; rather the
DHS questions the ability of the Immigration Judge to make this judgment
at all. 2
I interpret the language and structure of the statute and development of
relevant case law, combined with the sequencing of the frivolousness inquiry
and its consequences, to demonstrate the discretionary nature of the
frivolousness inquiry. And, absent any challenge to how the Immigration
Judge exercised her discretion in this case, which I consider to have been
waived, I would dismiss the appeal.
2
The relevant factors for the Immigration Judge to assess in making a threshold
determination whether to invoke the frivolousness inquiry are a separate issue not
implicated by the posture of this case.
506