26 I. & N. Dec. 872
BIA2016Background
- Respondent, a native of Guinea, entered the U.S. on November 22, 1997 as a nonimmigrant visitor.
- In 2000 he filed an I-589 asylum application that falsely listed his arrival as December 1999 (postdating actual entry by ~2 years) and claimed he had been a Mauritanian slave.
- INS denied the asylum claim for credibility/timeliness; respondent was ordered removed in absentia in 2002; that removal order was later rescinded in 2012.
- At removal proceedings the respondent withdrew asylum but sought adjustment of status and waivers; the Immigration Judge found he knowingly filed a frivolous asylum application under INA § 208(d)(6) based on the falsified entry date and denied relief.
- The respondent relied on Third Circuit dicta in Luciana to argue a time-barred asylum application cannot be found frivolous; the BIA distinguished Luciana and affirmed the frivolousness finding.
Issues
| Issue | Respondent's Argument | Government/Board's Argument | Held |
|---|---|---|---|
| Whether an untimely (time-barred) asylum application can be found frivolous under INA § 208(d)(6) | Luciana requires that misrepresentations in a time-barred application are immaterial, so frivolousness cannot attach when application is untimely | An untimely application may be frivolous if it contains a deliberate fabrication that was material when filed (e.g., date of entry) | A time-barred asylum application may be found frivolous when the falsehood is material to eligibility (affirmed) |
| Whether misrepresenting date of entry is a material element for frivolousness | Misstatements are immaterial if the application is untimely and merits are never reached (per Luciana) | Date-of-entry falsification is material because it can influence timeliness determination (threshold eligibility) | Misrepresentation of entry date is material; supports frivolousness finding |
| Whether BIA must follow Luciana in this Circuit | Respondent: Luciana (3d Cir.) precludes frivolous finding on time-barred applications | Board: Luciana is distinguishable and not controlling for falsified entry-date cases; follow Matter of X‑M‑C‑ and other circuits | BIA distinguishes Luciana and declines to follow it beyond that circuit |
| Effect of frivolousness finding on adjustment/waivers | Respondent: frivolousness cannot be found, so relief should be available | Board: §208(d)(6) permanently bars benefits when a frivolous application was knowingly filed | Frivolousness bar applies; respondent permanently ineligible for immigration benefits under §208(d)(6) |
Key Cases Cited
- Luciana v. Attorney General of the United States, 502 F.3d 273 (3d Cir. 2007) (held a misrepresentation relating solely to merits was immaterial once application was time-barred; court declined to decide broader authority to enter frivolousness findings in time-barred cases)
- Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir. 2008) (date-of-entry misrepresentation goes to timeliness and is material)
- Ghazali v. Holder, 585 F.3d 289 (6th Cir. 2009) (IJ has authority to make frivolousness findings in time-barred asylum cases; materiality judged at filing)
- Mingkid v. U.S. Attorney General, 468 F.3d 763 (11th Cir. 2006) (IJ authority to enter frivolousness rulings on untimely asylum applications)
- Kulakchyan v. Holder, 730 F.3d 993 (9th Cir. 2013) (misrepresentation about date of entry is material where it affects whether the application was time-barred)