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In determining that an application for asylum is frivolous, the Immigration Judge must address the question of frivolousness separately and make specific findings that the applicant deliberately fabricated material elements of the asylum claim. - Before the Immigration Judge makes a finding that an asylum application is frivolous, the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
- The Immigration Judge must provide cogent and convincing reasons for determining that a preponderance of the evidence supports a frivolousness finding, taking into account any explanations by the applicant for discrepancies or implausible aspects of the claim.
HURWITZ, Acting Vice Chairman:
In a decision dated January 22, 2004, an Immigration Judge found the respondent removable on his own admissions and denied his applications for asylum, withholding of removal under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the People’s Republic of China who entered the United States in January 2002 without proper documents. The respondent was placed in removal proceedings and filed his original Application for Asylum and for Withholding of Removal (Form I-589) in Immigration Court in August 2002. The claim was based principally on problems related to his wife’s practice of Falun Gong. A statement included with the original asylum application indicated that he and his wife had two children, a son born on September 24, 1989, and a daughter born on May 2, 1991. In regard to the second child, the statement provided:
According to the family planning policy, we were not allowed to have a second child. However, my wife and I believe[d] that there would not be any social security and retirement system to assure peasants like us. Therefore we had a second child. We hid here and there to avoid being captured by government officials. In order to give birth to my daughter, Liu Yin Fang, we hid here and there and led a stressful life.
In support of his original application for asylum, the respondent provided copies of his children’s birth certificates, each of which identified the respondent as the father and the respondent’s wife as the mother. He also submitted a copy of a Household Registration Booklet listing himself, his wife, and his son and daughter as members of the household.
Nearly a year after filing the original asylum application, the respondent retained new counsel and filed an amended application with a supporting statement providing the following account of events. After their son’s birth on September 24, 1989, his wife became pregnant again in August 1990. She avoided the quarterly check-ups with family planning officials because the second pregnancy violated the family planning laws. On April 20, 1991, four family planning officials came to their home and forcibly took his wife for an abortion. On May 8, 1991, the respondent’s sister-in-law found an abandoned female infant alongside a road in the village. The respondent and his wife informally adopted the infant as their own. In December 1996, the family planning office learned of the second child and fined the respondent and his wife for an illegal adoption. The pressures of these events affected his wife’s health and caused her to turn to the practice of Falun Gong for relief.
The remainder of the statement tracks the Falun Gong aspects of the claim contained in the original application and supporting statement. In support of
At a hearing before the Immigration Judge, the respondent testified concerning his request for asylum and answered questions from his attorney, the Government attorney, and the Immigration Judge. In regard to his wife’s second pregnancy, he testified that his wife remained at home undetected for almost the entire term of her pregnancy until the four family planning officials came to their home and forcibly took her for an abortion.
After the hearing, the Immigration Judge issued an oral decision denying the respondent’s requests for relief from removal and ordering him removed to the People’s Republic of China. In her decision, the Immigration Judge found that the respondent had not presented a credible claim for asylum or withholding of removal. She also found that the respondent had submitted a frivolous application for asylum in that he had deliberately fabricated the account of the abortion and the illegal adoption in his amended asylum application in order to obtain immigration benefits in the United States.
The respondent appealed the Immigration Judge’s decision. In regard to the frivolousness finding, the respondent stated in his notice of appeal that he did not mention his wife’s abortion in the original application for asylum because “he did not meet the attorney and he was not interviewed by the attorney before filing the original I-589 ” and “[t]he secretary missed mention[ing] his wife’s abortion in his original I-589.” Other than the conclusory statement that the determination was “arbitrary and capricious,” and that there was no confirmation from the consulate that documents submitted by the respondent were fraudulent, the respondent’s 8-page brief did not address the Immigration Judge’s frivolousness finding. We affirmed the Immigration Judge’s decision without opinion.
The respondent then petitioned the Second Circuit for review, challenging both the Immigration Judge’s adverse credibility determination and her frivolousness finding. The Second Circuit concluded that “substantial evidence support[ed] the credibility ruling against [the respondent]” but remanded the frivolousness finding to give the Board “an opportunity, in the first instance, to formulate standards for deciding when an asylum seeker’s application may be deemed frivolous.” Liu v. U.S. Dep’t of Justice, supra, at 108.
II. STATUTORY AND REGULATORY FRAMEWORK
In 1996, Congress amended the immigration law to discourage the filing of frivolous asylum applications.
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 Act, effective as of the date of a final determination on such application.
The regulation that governs the determination whether an asylum application is frivolous 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.
In preparing this regulation, the Attorney General stated that the Department of Justice was “carrying out one of the central principles of the asylum reform process begun in 1993; to discourage applicants from making patently false claims.” Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 447 (Jan. 3, 1997) (Supplementary Information). In the Federal Register Notice promulgating the final “Asylum Procedures” rule in 2000, the Attorney General added the following observations:
One commenter stated that the regulatory definition of “frivolous” does not contain appropriate safeguards, and that the Service should advise every asylum applicant of the consequences of filing frivolous claims. The current regulation provides appropriate safeguards by stipulating that an immigration judge or the Board must be satisfied that an applicant had sufficient opportunity to account for any discrepancies before finding that an applicant filed a frivolous application, and by permitting an applicant to seek withholding of removal even if he or she is found to have filed a frivolous application. The regulation itself also advises an applicant that he or she is subject to the provisions of
section 208(d)(6) of the Act if a final order specifically finds that the alien knowingly filed a frivolous application. Finally, both the instructions to the Form I-589 and the application itself warn the applicant about the consequences of filing a frivolous claim, as required bysection 208(d)(4) of the Act .
Asylum Procedures, 65 Fed. Reg. 76,121, 76,128 (Dec. 6, 2000) (Supplementary Information).
The implementing regulation provides a comprehensive framework for determining whether an asylum application is frivolous. Given the serious consequences of a frivolousness finding, the regulation provides a number of procedural safeguards. These include the following requirements: (1) notice to the alien of the consequences of filing a frivolous application; (2) a specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application; (3) sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and (4) an indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.1 We address each of these requirements in turn.
A. Notice
The statute and regulation require that the Attorney General advise the alien at the time of filing an asylum application of the consequences of filing a frivolous application, i.e., permanent ineligibility for any benefits under the Immigration and Nationality Act except for withholding of removal. See
B. Specific Findings
The regulation subjects an alien to the penalty provision for filing a frivolous application “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.”
As a number of courts have observed, “‘a finding of frivolousness does not flow automatically from an adverse credibility determination.’” Liu v. U.S. Dep’t of Justice, supra, at 113 (quoting Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir. 2005)); see also Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1317 (11th Cir. 2006) (“[A]n adverse credibility determination alone cannot support a finding of frivolousness.”). We agree that the Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.
The Immigration Judge in this case, after finding the respondent not credible, separately addressed the question of frivolousness and provided the following analysis:
[T]he respondent’s application for political asylum has been deliberately fabricated in order to obtain immigration benefits in the United States. The original I-589 application for political asylum indicates that the respondent has a daughter. The statement attached to that application indicates that his wife gave birth to that daughter and was hiding in order to be able to effectively give birth to that daughter. The respondent’s new application is totally and completely different. It states that the daughter was adopted when the respondent’s sister-in-law found the baby girl in a rice paddy.
The respondent’s Q&A airport statements and credible fear interviews also mention absolutely nothing about any family planning problems in the People’s Republic of China, not any alleged forced abortion. The documentary evidence is totally and
completely lacking in order to overcome these most glaring discrepancies. It appears that the respondent and his wife do have a daughter and that she was naturally born to the respondent. This is substantiated by the household registration booklet and notarial birth certificate, and that the respondent has fabricated this story about an adopted daughter, in order to obtain immigration benefits in the United States. I, therefore, find that the respondent’s application for asylum must also be deemed frivolous.
In these two paragraphs the Immigration Judge finds that the respondent “deliberately fabricated” the account of the abortion and illegal adoption in the second asylum application. As to materiality, she refers to “totally and completely different” aspects of the amended application–principally the account of the abortion and adoption. These findings meet the regulatory requirement that the Immigration Judge separately address and include specific findings that the respondent deliberately fabricated material elements of his asylum claim.
C. Burden of proof
We now turn to whether the Immigration Judge’s findings are supported by the evidence of record. In its remand, the court has requested that we provide guidance regarding “who carries the burden of proof, what degree of certainty is required, when an opportunity to be heard will be deemed sufficient, how ‘deliberate’ and ‘material’ a fabrication must be, and what deference the BIA owes to an IJ’s finding in this context.” Liu v. U.S. Dep’t of Justice, supra, at 113.
Ordinarily, an applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements for eligibility for the applicable form of relief. See
A frivolousness finding, unlike a determination in regard to eligibility for a particular form of relief governed by
We find no indication in the statute or regulation that a frivolousness finding must be supported by “concrete or conclusive” evidence of fabrication. As a general rule, “the law draws no distinction between direct and circumstantial evidence in requiring the government to carry its burden of proof.” United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005). Moreover, proof that conduct was knowing or deliberate may be demonstrated by circumstantial evidence. Mayer v. Oil Field Systems Corp., 803 F.2d 749 (2d Cir. 1986). After taking into account the respondent’s explanations for discrepancies or implausible aspects of the claim, however, the Immigration Judge must provide cogent and convincing reasons for finding by a preponderance of the evidence that an asylum applicant knowingly and deliberately fabricated material elements of the claim.
As the Attorney General emphasized at the time the regulation was promulgated, the regulatory standards for the frivolousness finding have been formulated with the severity of the consequences in mind. See Asylum Procedures, 65 Fed. Reg. at 76,128 (“The Department believes that the current regulation provides for appropriate safeguards for filing a frivolous asylum application, and that, for the reasons set forth in the supplemental information to the January 3, 1997, proposed rule, the definition of frivolous is sufficient.”) (Supplementary Information). As discussed below, in addition to mandating notice of consequences and specific findings of deliberate fabrication of a material element of the asylum application, as well as placing the ultimate burden of proof on the Government, the regulation requires that particular attention be given to providing the alien a sufficient opportunity to account for any discrepancies or implausible aspects of the claim relied on in the frivolousness finding.
In considering an appeal from an Immigration Judge’s decision filed after September 25, 2002, as was the appeal in this case, we give de novo review
In her decision, the Immigration Judge identified concerns regarding discrepancies and plausibility that indicated to her that the respondent may have deliberately fabricated material elements of his amended asylum application. See Monter v. Gonzales, 430 F.3d 546, 553-54 (2d Cir. 2005) (stating that a misrepresentation is material if it has “‘a natural tendency to influence or was capable of influencing, the decision of the decisionmaking body to which it was addressed’” (quoting Kungys v. United States, 485 U.S. 759, 770 (1988))). These concerns were not mere incidental or tangential discrepancies or omissions. As the court acknowledged in its assessment of the Immigration Judge’s credibility determination, the respondent’s claim in his original application “that his wife gave birth to their second child, rather than simply reporting (without emphasis or elaboration) that they had adopted their daughter in May 1991” is a “glaring inconsistency” when compared to the new claims in the amended application based on an illegal adoption of that same child after a forced abortion. Liu v. U.S. Dep’t of Justice, supra, at 111.
As the respondent’s explanations must be considered in determining whether a preponderance of the evidence ultimately supports the frivolousness finding, we turn to the question whether the respondent was afforded a sufficient opportunity to account for the discrepancies and implausible aspects of his claim relied on by the Immigration Judge.
D. Sufficient Opportunity To Explain
The regulation requires that the frivolousness 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.”
In order to afford a sufficient opportunity to account for discrepancies, it would be a good practice for an Immigration Judge who believes that an
In the case before us, the Immigration Judge did not mention during the course of the hearing that she was contemplating a frivolousness finding. We do not find that the particular concerns underlying the frivolousness finding were such that the respondent should necessarily have anticipated such a finding and provided explanations relevant to the question whether he deliberately fabricated the account of the forced abortion and illegal adoption in the second application. See Ye v. Dep’t of Homeland Security, 446 F.3d 289 (2d Cir. 2006) (finding that for purposes of an adverse credibility determination the respondent need not be afforded an opportunity to respond to self-evident inconsistencies).3
The respondent did, however, explain during the course of the hearing why the new claims in his amended asylum application were not included in his original application. In a cover statement accompanying his amended application, he explained that when he filed the original asylum application he did not know that family planning was a basis for asylum, that he had never spoken to his first attorney, that the original asylum application was never read
Although the respondent’s explanations raise as many questions as they answer, they do have some bearing on whether he deliberately fabricated critical aspects of the amended application and, therefore, should have been addressed and evaluated by the Immigration Judge. See Ming Shi Xue v. BIA, 439 F.3d 111, 123 (2d Cir. 2006) (finding that the Immigration Judge erred in failing to consider the explanations that an applicant gave in order to rectify discrepancies in testimony).
The respondent essentially blames his first attorney and that attorney’s secretary for including incorrect information in his first application, for missing essential elements of his persecution claim that necessitated the filing of an amended application, and for failing to obtain his verification of the contents of his statement accompanying the original application. The regulation provides that “[t]he applicant’s signature [on an asylum application] establishes a presumption that the applicant is aware of the contents of the application.”
Under the circumstances in this case, the Immigration Judge had good reason to be concerned with the plausibility of the abortion and illegal adoption aspects of the respondent’s amended asylum application. She should not, however, have entered a frivolousness finding without communicating these concerns to the respondent before concluding the proceedings and without addressing the respondent’s explanations. Had she confronted the respondent with her concerns, she could have further probed for clarification of the manner in which the original asylum application was prepared. See Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997) (describing the shared responsibility of parties and the Immigration Judge to assure that relevant
IV. CONCLUSION
At the time of filing his amended asylum application, the respondent provided explanations relevant to the question whether he had deliberately fabricated a material element of the claims in his amended asylum application. These explanations should have been more fully explored during the course of the hearing and addressed in the Immigration Judge’s decision. For these reasons, we find that the “frivolousness” determination in this case does not meet the regulatory requirement that the respondent be afforded a sufficient opportunity to explain perceived discrepancies or implausibilities. We will therefore vacate our prior decision to the extent that it affirms the Immigration Judges’ frivolousness finding and sustain the respondent’s appeal from that finding.
ORDER: Our prior decision is vacated to the extent that it affirms the Immigration Judge’s frivolousness finding, and the respondent’s appeal from the Immigration Judge’s frivolousness finding is sustained.
FURTHER ORDER: The respondent is ordered removed from the United States to the People’s Republic of China pursuant to the Immigration Judge’s decision of January 22, 2004.