M-M-A
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
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
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
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
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
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
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
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
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.
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
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
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
Likewise,
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
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
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
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.
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
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
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
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.
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
I recognize the concerns about rampant fraud in immigration proceedings, which led to the enactment of the provisions for frivolous asylum applications under
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
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.