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322
Matter of X-M-C-, Respondent
Decided August 25, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A determination that an alien has filed a frivolous application for asylum, pursuant
to section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6)
(2006), can be made in the absence of a final decision on the merits of the asylum
application.
(2) Withdrawal of an alien’s asylum application after the required warnings and safeguards
have been provided does not preclude a finding that the application is frivolous.
FOR RESPONDENT: Howard Hom, Esquire, San Diego, California
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
GRANT, Board Member:
This case is presently before us pursuant to an order of the United States
Court of Appeals for the Ninth Circuit. That order requested that we address
whether a determination that an alien has filed a frivolous application for
asylum, pursuant to section 208(d)(6) of the Immigration and Nationality
Act, 8 U.S.C. § 1158(d)(6) (2006), can be made (1) in the absence of a final
decision on the merits of the application or (2) in circumstances where the
asylum application has been withdrawn. Chen v. Mukasey, 527 F.3d 935 (9th
Cir. 2008). Previously, we summarily affirmed the decision of an Immigration
Judge denying the respondent’s applications for relief and determining that she
had filed a frivolous application.
We conclude that a determination pursuant to section 208(d)(6) of the Act
can be made in the absence of a final decision on the merits of the asylum
application and, moreover, that withdrawal of an asylum application after the
required warnings and safeguards have been provided does not preclude
making such a determination. Accordingly, the respondent’s appeal will
be dismissed.
I . FACTUAL AND PROCEDURAL HISTORY
The respondent arrived in the United States in 1998, having obtained
a nonimmigrant P-3 visa through fraudulent means. In March 1999, she filedCite as 25 I&N Dec. 322 (BIA 2010) Interim Decision #3693
323
an application for asylum from China, which she admits contained materially
false information. A month later, she gave testimony to an asylum officer
in support of her application. In the course of that interview, she falsely stated
that she was married and that she had two children. Her application was
referred by the asylum officer to the Immigration Court, and a Notice
to Appear (Form I-862) was served on the respondent.
At an August 1999 hearing before an Immigration Judge, the respondent’s
attorney was served with a Notice of Privilege of Counsel and Consequences
of Knowingly Filing a Frivolous Application for Asylum. At the same
hearing, the respondent was advised by the Immigration Judge of the
consequences of filing a frivolous asylum application, and after being given
the opportunity to discuss the frivolous application warnings with her counsel,
she stated that she wanted the Immigration Judge to consider her asylum
application. Thereafter, on November 15, 1999, the asylum application was
withdrawn and the respondent elected to apply for adjustment of status,
contingent on the approval of a spousal visa petition filed on her behalf.
At an April 25, 2002, hearing regarding the adjustment application, the
respondent testified that the contents of her asylum application were false,
as was her testimony to an asylum officer in 1999. Furthermore, she stated
that she had submitted fraudulent documents to support her spurious claim that
she was married and had children in China. The Department of Homeland
Security argued that the adjustment application should be denied because the
respondent had filed a frivolous asylum application. In a decision dated
February 27, 2003, the Immigration Judge denied the respondent’s application
for adjustment of status based on her frivolous asylum application, holding that
the later recantation of her story did “not waive the fact that a frivolous
application has been filed.”
II. ANALYSIS
The Immigration Judge’s determination that the respondent filed a frivolous
asylum application clearly comports with the requirements set forth in Matter
of Y-L-, 24 I&N Dec. 151 (BIA 2007); see also Matter of B-Y-, 25 I&N Dec.
236 (BIA 2010). First, the Immigration Judge gave the respondent both oral
and written warnings about the consequences of proceeding with a frivolous
asylum application. Second, the Immigration Judge made a specific finding
that the respondent knowingly filed a frivolous asylum application. Third,
there is sufficient evidence in the record supporting the finding that a material
element of the asylum application was deliberately fabricated. Finally, the
respondent was given an opportunity to account for the fabricated portions
of her claim. The Ninth Circuit has agreed, stating that the respondent’s
application for asylum “‘unquestionably contained deliberately fabricated
elements’” and that she received proper notice of the consequences of filingCite as 25 I&N Dec. 322 (BIA 2010) Interim Decision #3693
1 The Immigration Judge may raise the issue of frivolousness, but given the adversarial
nature of the proceedings, the Immigration Judge is not required to evaluate whether
an application is frivolous if the Government does not raise the issue. See Matter of Y-L-,
24 I&N Dec. at 160 (stating that the Immigration Judge or the Government may raise the
issue of frivolousness). For example, the fact that an adverse credibility determination
is made does not in itself require the Immigration Judge to make a separate determination
on whether the application was frivolous.
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a frivolous application. Chen v. Mukasey, 527 F.3d at 943 (quoting Mei Juan
Zheng, 514 F.3d 176, 180 (2d Cir. 2008)).
In response to the first question posed by the Ninth Circuit, we conclude
that an Immigration Judge’s authority to determine that an alien has knowingly
made a frivolous application for asylum is not limited to circumstances
in which the Immigration Judge makes a final determination on the merits
of the application. The relevant provisions of the Act and the regulations
clearly indicate that an inquiry into whether an application is frivolous can
be triggered once the application is “made” or “filed.” According to section
208(d)(6) of the Act,
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.
(Emphasis added.) The regulations are in accord:
For applications filed on or after April 1, 1997, an application 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.
8 C.F.R. § 1208.20 (2010) (emphasis added).
Thus, the only action required to trigger a frivolousness inquiry is the filing
of an asylum application.1
There is no requirement or mandate that the alien
subsequently follow through with the application until a final decision is made
on the merits. According to Matter of Y-L-, 24 I&N Dec. at 157, a finding that
an asylum application is frivolous is a “preemptive determination,” unlike one
concerning eligibility for a particular form of relief from removal. (Emphasis
added.) Consequently, after a determination has been made that an asylum
application is frivolous, a separate evaluation of the merits of the application
is not necessary. Indeed, it would be pointless in many cases to require
an Immigration Judge to separately assess an asylum application on the
merits after a determination has been made that material elements of theCite as 25 I&N Dec. 322 (BIA 2010) Interim Decision #3693
2 This observation is not intended to discourage Immigration Judges from making
an alternative finding that, even if the application is not frivolous, the applicant has not met
the burden of proof. Alternate findings can promote the efficient resolution of cases. See
8 C.F.R. § 1240.12(c) (2010). The Immigration Judge is not required to have fully ruled
on the merits of the claim in order for the frivolousness finding to be effective.
3
This interpretation does not limit Immigration Judges to considering the frivolousness
of only new or currently pending asylum applications. Rather, if a frivolous application
is filed by an applicant and the safeguards in Matter of Y-L are followed, that application
may, at any time, be discovered or determined to be frivolous. There is no statute
of limitations with respect to making a determination of frivolousness, and the fact that
an applicant may have been able to avoid the discovery that a prior application was frivolous
does not prevent a later determination that it was indeed frivolous.
4 There is nothing in the plain language of section 208(d)(6) that supports the conclusion
that withdrawal of an asylum application renders the application moot and thus not
susceptible to a frivolousness finding.
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application were deliberately fabricated. Once the framework and safeguards
delineated in Matter of Y-L- are followed, that is the end of the inquiry, and the
consequences of filing a frivolous application apply.2

The statutory phrase providing that a finding that an application is frivolous
is effective “as of the date of a final determination on such application” does
not require a final determination on the merits of that application. Section
208(d)(6) of the Act. As noted above, the regulations refer to a “final order by
an immigration judge or the Board of Immigration Appeals [that] specifically
finds that the alien knowingly filed a frivolous asylum application.” 8 C.F.R.
§ 1208.20. We conclude that in the context of section 208(d)(6), the phrase
“final determination on such application” includes a final order determining
that an asylum application is frivolous. Such a finding of frivolousness
is a preemptive determination that bars a grant of the asylum application and
makes a separate determination on the merits of the application unnecessary.3
The answer to the Ninth Circuit’s second question—whether withdrawal
of an asylum application renders the application moot and thus not susceptible
to a frivolousness finding—turns not only on the precise text of section
208(d)(6) of the Act, but also on the policy behind that provision.4
See
Matter of Moncada, 24 I&N Dec. 62, 64-65 (BIA 2007) (stating that our duty
is to construe the Act in context, guided by common sense and as part
of a symmetrical and coherent statutory and regulatory scheme) (citing Food
and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 133 (2000)). The plain language of section 208(d)(6) clearly provides
that an asylum application can be deemed frivolous once it is “made” and the
required warnings have been given. Allowing the preemptive withdrawal
of an application to prevent a finding of frivolousness would undermine both
the plain language of, and the policy behind, section 208(d)(6)—as well as theCite as 25 I&N Dec. 322 (BIA 2010) Interim Decision #3693
5 There may be circumstances where, after the warnings have been given, the evidence
suggests that an asylum application might have been fabricated and, as a means to end
(continued…)
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potency of the required warnings. An alien, such as the respondent, who not
only filed a frivolous application but also testified falsely in support of that
application to an asylum officer could escape the consequences deliberately
chosen by Congress to prevent such abuse of the system.
In its analysis in this case, the Ninth Circuit endorsed Lazar v. Gonzales,
500 F.3d 469 (6th Cir. 2007), where the Sixth Circuit rejected arguments
similar to those posed by the respondent. The petitioner in Lazar filed two
applications for asylum. After receiving the frivolous application warnings,
the petitioner affirmed that the contents of his second asylum application were
entirely correct, and he declined to make any changes. Id. at 473. During the
hearing, in response to questions and documents submitted by the
Government, the petitioner admitted that he had been untruthful in his second
asylum application and then withdrew that application. The Immigration
Judge acknowledged the withdrawal of the application but indicated that
a prompt recantation did not prevent the application from being deemed
frivolous. We upheld the Immigration Judge’s decision.
The Sixth Circuit agreed and held that the withdrawal of the asylum
application did not obviate the need for the Immigration Judge to determine
whether the false application should be deemed frivolous. In its decision
remanding this case, the Ninth Circuit specifically endorsed the Sixth
Circuit’s reasoning and conclusion in Lazar. Chen v. Mukasey, 527 F.3d
at 943 (expressing the belief that Lazar was “correctly decided”); see also
Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1339 (11th Cir. 2001)
(upholding a frivolousness finding where the alien’s initial asylum application
contained a fabricated element and the alien filed a revised application).
Furthermore, the warnings provided on asylum applications and verbally
given by Immigration Judges, in addition to the safeguards outlined in Matter
of Y-L-, 24 I&N Dec. 151, amply protect an asylum applicant and give the
alien an opportunity to recant a statement or withdraw the application prior
to acknowledging the frivolous application warnings. If after the warnings
are given, the applicant still swears that the application is truthful,
a subsequent withdrawal or a recanting of a story does not provide protection
from a frivolous application inquiry or finding. While applicants should
be encouraged to recant false statements and withdraw false applications, the
Immigration Judge and this Board are not prevented from finding that
an application is frivolous simply because the applicant withdrew the
application or recanted false statements after the appropriate warnings and
safeguards were given, but prior to a decision on the merits.5Cite as 25 I&N Dec. 322 (BIA 2010) Interim Decision #3693
(…continued)
litigation, the parties stipulate to withdrawal of the application and request the entry
of an order of removal or voluntary departure. Our ruling should not be understood
to prohibit such a course of action.
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After being given the frivolous application warnings and an opportunity
to discuss them with counsel, the respondent testified before the Immigration
Judge that she wanted him to accept and consider her asylum application.
Only later did she indicate that she wished to withdraw that application. The
respondent could have withdrawn her fraudulent asylum application before
being given the warnings or after being asked whether she wished to proceed
on the application. She did neither. Thus, her subsequent withdrawal did not
preclude a determination that the application was frivolous. Therefore, the
Immigration Judge did not err in determining that the respondent filed
a frivolous asylum application and in pretermitting her application for
adjustment of status. Accordingly, the respondent’s appeal will be dismissed.
ORDER: The appeal is dismissed.