BIA HOLDS THAT WHEN DHS RAISES THE MANDATORY BAR FOR FILING A FRIVOLOUS ASYLUM APPLICATION UNDER INA §208(d)(6), AN IMMIGRATION JUDGE MUST MAKE SUFFICIENT FINDINGS OF FACTS AND CONCLUSIONS OF LAW ON WHETHER THE REQUIREMENTS FOR A FRIVOLOUSNESS FINDING UNDER Matter of Y-L-, 24 I&N Dec. 157 (BIA 2007) HAVE BEEN MET.
On March 11, 2022, the Board of Immigration Appeals (BIA or Board) sustained the DHS appeal of an order by an Immigration Judge (IJ) granting Respondent’s application for adjustment of status (AOS) along with an INA §212(i) waiver of inadmissibility. DHS contended that Responded had filed a frivolous asylum application and was therefore barred from the requested relief. The IJ’s decision was thus vacated and the record remanded.
A native and citizen of Yemen, Respondent had filed an asylum application with USCIS claiming his father had founded and led an organization promoting the secession of South Yemen; stating he and his brother were members of this group; claiming his father was imprisoned and he and his brother the subjects of arrest warrants because of their membership; and, stating that if he returned home, he would be arrested, imprisoned and likely tortured. Respondent signed the application, swearing to its truth, and “attached a declaration repeating this claim, as well as a document purporting to be a Yemeni arrest warrant.” He also testified under oath to the truth of his claims at two asylum interviews, receiving notice of the consequence of filing a frivolous asylum application and acknowledging that the penalty for filing a frivolous claim could be his permanent ineligibility for any benefits under the INA. USCIS denied the application and placed him into removal proceedings.
Before the IJ, Respondent sought AOS based on his marriage to a U.S. citizen.
However, after DHS noted that he might be barred from relief on the ground that he provided material support to a terrorist group, he withdrew his asylum application. Respondent claimed that poor English skills caused him to mischaracterize certain information in that application and that he wished to retract such data regarding aspects of his involvement with his father’s movement. Further, acknowledging that these misrepresentations rendered him inadmissible, he filed an I-601 waiver application per INA §212(i).
At his individual hearing, Respondent admitted “that his written declaration and his testimony at his asylum interviews were false.” He also testified that he submitted a false arrest warrant and “lied to the asylum officers under oath.” In response, DHS requested that the IJ hold that Respondent had filed a frivolous asylum application; instead, the IJ found the application was based on false information which Respondent admitted was untrue and such representations were material and wilful. She found the applicant inadmissible under INA §212(a)(6)(C)(i) but eligible for a §212(i) waiver. Although Respondent admitted his asylum application was fraudulent, the IJ held she was not required to make a frivolous finding or order him permanently barred from relief by INA §208(d)(6); she concluded that Respondent merited a waiver and granted him AOS.
On appeal, DHS argued that the IJ improperly refused its request for a frivolous finding under §208(d)(6), mandatorily barring relief, and failed to apply the analytical framework of Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007). DHS also contended that when it raises a frivolous asylum claim issue, the IJ must make relevant findings of fact and conclusions of law as to whether the bar applies before considering one’s application for relief.
In beginning its analysis, the Board took up this contention, finding that the issue to be reviewed de novo was whether, when a frivolous asylum claim barring relief is alleged by DHS, an IJ “is required to make predicate findings of fact and conclusions of law to determine whether the requirements” for a frivolous finding have been satisfied. Such a finding, stated the opinion, is a preemptive determination that, once made, forever bars an applicant from any benefit under the INA. Given the seriousness of this determination, “specific requirements must be met before an Immigration Judge or the Board” can enter a frivolous finding. Among these is a specific finding that one knowingly and deliberately fabricated material elements of a claim.
Where DHS argues that the mandatory bar applies, found the opinion, the IJ commits an error by not addressing the issue and making “sufficient factual findings” on whether the requirements of the determination have been met; the court must make “sufficient findings of fact and conclusions of law” on the issue to ensure effective review by the BIA. Further, noted the Board, as a general rule, when DHS raises an issue of statutory eligibility for relief, the IJ may not grant relief without addressing that issue; the Ninth Circuit Court of Appeals, which has jurisdiction over this matter, has held that IJs and the Board err when they “ignore potentially dispositive arguments or evidence presented.” Further, where the record contains sufficient evidence that the bar may apply and DHS raises the issue, an IJ cannot grant relief without determining whether the requirements for a frivolous finding have been met; the applicable regulations mandate that the IJ consider issues of statutory eligibility raised by the applicant. Thus, held the BIA, when DHS raises the mandatory bar question, the IJ cannot ignore the frivolous issue and must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolous determination under Matter of Y-L-, 24 I&N Dec. ar 155-160, have been met.
Additionally, the majority decision refused to consider in this case whether an IJ has the discretion not to make a frivolous finding, the primary argument made by the dissent. The Board was unaware, it claimed, “of any precedent case law from the Ninth Circuit holding that an Immigrant Judge can decline to make findings regarding this mandatory bar when the issue is raised by the DHS.”
The DHS appeal was sustained and the IJ’s decision was vacated. The record was remanded for further proceedings and the entry of a new decision.
In her dissenting opinion, Appellate Immigration Judge Anne J. Green found that IJs “retain discretion over whether to initiate a frivolousness inquiry” under Matter of Y-L-, explaining her view that the court is not required to engage in a frivolous analysis, but may elect to do so based on an IJ’s independent judgment. The majority opinion, she stated, had created “an unwarranted expansion” of the INA’s frivolous asylum application provision, “contrary to statute, regulations, and case law.”
Because DHS 1) had not challenged the IJ’s grant of the §212(i) waiver, including the findings of extreme hardship and the conclusions that Respondent merited the waiver in the exercise of discretion, and 2) did not dispute the IJ’s reasons for not initiating a frivolousness inquiry, AIJ Greer concluded that the only contested issue was whether an IJ, when requested by DHS, must make such a determination where the applicant has made a material misrepresentation in his or her asylum application. The dissent did not read INA §208(d)(6) or the implementing regulations as mandating that the IJ initiate a frivolous inquiry. In the absence of such a mandate, AIJ Greer saw no reason to impose one, stating that doing so, “results in severe consequences.”
In discussing the applicable case law, the dissent noted that the Second Circuit had recognized an IJ’s discretion, based on a case’s particular circumstances, to determine that an adverse credibility finding “does not warrant a frivolous inquiry”; this, AIJ Greer saw as the “classic question of judgment retained by the adjudicator.”
Further, she stated, the majority’s analysis created confusion about whether any material misrepresentation must lead to a frivolous determination because it conflates such inquires with mandatory bars to asylum per §208(b)(2)(A)(i) through (vi), which are specifically referenced by the regulations at 8 C.F.R.1208.13(c)(1); the frivolousness provision is separate from these bars and the Board is not addressing asylum eligibility here.
Additionally, requiring an IJ, either independently or at the request of DHS, to engage in such an analysis because of a respondent’s material misrepresentation “upends current practice by creating a rigid structure not mandated by statute.” This, claimed AIJ Greer, equates adverse credibility with frivolousness, conflicting with case law. Because such an inquiry should be discretionary in nature, absent any challenge to how the IJ exercised her discretion in this case, which it considered to have been waived, the dissent would have dismissed the appeal. Matter of M-M-A-, 28 I&N Dec. 494 (BIA 2022).
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