Emmanuel Adebayo v. Jeff B. Sessions, 679 F. App'x 529

Petitioner Emmanuel Adebayo, a Nigerian national, moved the BIA to remand so he could adjust status based on marriage to a U.S. citizen after an IJ ordered him removed.
The IJ found numerous inconsistencies between Adebayo’s asylum application, interview, and testimony about his knowledge of and membership in the Niger Delta Vigilante Movement (NDVM).
The IJ concluded the inconsistencies together undermined Adebayo’s credibility but declined to find his asylum application frivolous, explaining there was insufficient evidence of deliberate fabrication.
The BIA denied the motion to remand, stating Adebayo’s past visa violations and filing an asylum application containing false information were not outweighed by his subsequent marriage.
Adebayo challenged the BIA’s denial, arguing the BIA engaged in impermissible factfinding by stating his application contained false information, because the IJ did not explicitly find deliberate fabrication.
Adebayo also originally challenged the IJ’s adverse credibility finding but conceded at oral argument that substantial evidence supported it.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the BIA engaged in impermissible factfinding by stating Adebayo’s asylum application contained false information	Adebayo: The IJ made an adverse credibility determination but did not find deliberate fabrication; BIA thus exceeded its role by finding the application contained false information	Government/BIA: The IJ’s credibility findings and specific factual findings about inconsistencies support the view that the application contained false statements; BIA’s statement is consistent with the record	Denied: The BIA did not impermissibly factfind; its statement that the application contained false information is reconcilable with the IJ’s findings and refusal to find frivolousness was based on lack of intent

Taggar v. Holder, 736 F.3d 886 (9th Cir. 2013) (standard of review: BIA denial of remand reviewed for abuse of discretion)
Liu v. Holder, 640 F.3d 918 (9th Cir. 2011) (frivolousness requires deliberate fabrication of a material element)
Khadka v. Holder, 618 F.3d 996 (9th Cir. 2010) (adverse credibility does not automatically equal frivolousness)