Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
1 We did not rely on the Immigration Judge’s alternative determination that the respondent
was ineligible for asylum for failing to timely file the asylum application.
236
Matter of B-Y-, Respondent
Decided May 6, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In making a frivolousness determination, an Immigration Judge may incorporate
by reference any factual findings made in support of an adverse credibility finding,
so long as the Immigration Judge makes explicit findings that the incredible aspects of the
asylum application were material and were deliberately fabricated. Matter of Y-L-,
24 I&N Dec. 151 (BIA 2007), clarified.
(2) In considering an asylum applicant’s explanations for inconsistencies or discrepancies,
an Immigration Judge making a frivolousness determination must separately address the
applicant’s explanations in the context of how they may have a bearing on the materiality
and deliberateness requirements unique to that determination.
(3) When the required frivolousness warnings have been given to an asylum applicant prior
to the merits hearing, the Immigration Judge is not required to afford additional warnings
or to seek further explanation in regard to inconsistencies that have become obvious
during the course of the hearing.
FOR RESPONDENT: Raymond Lo, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Ramin Rastegar, Assistant
Chief Counsel
BEFORE: Board Panel: HOLMES, HESS, and GUENDELSBERGER, Board Members.
GUENDELSBERGER, Board Member:
This case was last before us on May 10, 2006, when we affirmed the
Immigration Judge’s adverse credibility determination and his finding that the
respondent had submitted a frivolous asylum claim.1
On July 31, 2007, the
United States Court of Appeals for the Second Circuit upheld the adverse
credibility determination and the resulting denial of the respondent’s claims for
asylum and withholding of removal but remanded the case to us for further
analysis of the frivolousness determination. Biao Yang v. Gonzales, 496 F.3d
268 (2d Cir. 2007). The court also directed that we address the respondent’sCite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
237
claim for withholding of removal under the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp.
No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,
1987; for the United States Apr. 18, 1988) (“Convention Against Torture”).
Upon further consideration, the respondent’s appeal will be sustained in part,
and the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
A. Respondent’s Asylum Claim
The respondent, a native and citizen of China, arrived in the United States
in November 2002 at the Chicago O’Hare International Airport. Soon after
landing, he was interviewed at the airport by immigration officials. During the
airport interview, he indicated that family planning authorities in China had
forced his girlfriend to abort her pregnancy and that they wanted to arrest him
and charge him with a fine.
In his asylum application, filed with the Immigration Court on April 16,
2004, the respondent provided additional information regarding the events
leading up to and following his girlfriend’s abortion. The statement
accompanying the asylum application indicates that he struggled with and
injured one of the family planning officials when they came to take his
girlfriend for an abortion on May 16, 2002. The statement also describes
a May 20, 2002, confrontation with family planning officials, during which the
respondent was detained and beaten before he managed to escape.
B. Adverse Credibility Determination
The Immigration Judge’s adverse credibility finding was based on a variety
of factors, including (1) omissions in the airport interview of events included
in the asylum application; (2) inconsistencies between the asylum application
and the airport interview; (3) inconsistencies between testimony and the
asylum application; and (4) inconsistencies within the testimony, as well
as implausible testimony. The Board found that the Immigration Judge’s
adverse credibility finding was not clearly erroneous.
The Second Circuit identified the following findings by the Immigration
Judge, among others, as substantial evidence in support of the adverse
credibility determination:
(1) Yang’s failure to mention at his airport interview that he was ever arrested
or beaten; (2) inconsistencies in his testimony regarding the chronology of events;
(3) an implausible and inconsistent account of how he escaped from detention; (4) theCite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
238
IJ’s observation that Yang appeared to be “simply making up testimony when
confronted by inconsistencies”; (5) contradictory and implausible testimony regarding
his employment; and (6) contradictory evidence regarding when Yang decided
to leave China.
Biao Yang v. Gonzales, 496 F.3d at 272. The court also found that the
Immigration Judge properly relied on the transcript of the airport interview
because there was no evidence of coercion or any other indication
of unreliability in the conduct of the airport interview or in the preparation
of the record of the interview. Id.
C. Immigration Judge’s Frivolousness Finding
After denying asylum and withholding of removal for lack of credibility, the
Immigration Judge separately addressed whether the respondent had filed
a frivolous asylum application, reasoning as follows:
At a master calendar proceeding conducted before the undersigned on April 16th,
2004, the respondent was provided with warnings concerning frivolous asylum
applications pursuant to INA Section 208(d)(4). . . . The respondent, at that time,
advised that he understood the nature and gravity of the warnings. The respondent
was reminded today by the Court of the gravity of the warnings. Once again, the
respondent testified that he understood the nature and gravity of the warnings.
Notwithstanding the representations of the respondent regarding his understanding
of the nature and gravity of the warnings concerning frivolous asylum applications,
it is clear to the Court that the respondent has submitted a clearly fabricated
application for asylum.
The Court comes to this conclusion based not only on the multiple inconsistencies
uttered by the respondent regarding the narrative leading up to and from his alleged
confrontation with family planning officials on May 20th, 2002, but also from the
rank inconsistency between the respondent’s application for relief and the [airport
statement].
The Court finds that the asylum application has been fabricated and will apply the
lifetime bar to future immigration benefits pursuant to INA Section 208(d)(6).
II. ISSUES ON REMAND
In Matter of Y-L-, 24 I&N Dec. 151, 155 (BIA 2007), the Board provided
a set of standards to be applied in making a frivolousness determination,
including 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.Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
239
Our decision in Matter of Y-L- was not rendered until after the Immigration
Judge and the Board issued their decisions in this case. The court asks in its
remand order that we further consider the frivolousness determination in this
case under the standards established in Matter of Y-L- and that we clarify
certain issues raised by those standards.
The court indicated that the guidance provided in Matter of Y-L- raised
a number of additional issues including the following:
(1) to what extent the IJ is required to set out his or her factual findings to support
a frivolousness determination separately from the adverse credibility determination
and to what extent he or she is permitted to incorporate by reference the findings made
to support an adverse credibility determination; (2) to what extent the IJ is required
to consider the applicant’s explanations for any discrepancies separately from the
adverse credibility determination; (3) to what extent the IJ is required to explicitly
find that the fabrications at issue were “deliberate” or “material”; and (4) to what
extent the IJ is required, if at all, to inform the applicant during the course of the
proceedings that he or she is considering a frivolousness determination before
he or she renders such a determination.
Biao Yang v. Gonzales, 496 F.3d at 279. We will address each of these issues
in turn and then address the sufficiency of the frivolousness determination
in this case.
III. ANALYSIS OF REQUIREMENTS FOR
FRIVOLOUSNESS FINDINGS
A. Incorporation by Reference
The court has requested that we address the extent to which an Immigration
Judge making a frivolousness determination may incorporate by reference
factual findings that were made in support of an adverse credibility finding.
The court asks in particular whether the Immigration Judge in this case
complied with Matter of Y-L- when, although he “did separately address the
frivolousness determination, he did not make specific factual findings
supporting that determination, except to arguably incorporate by reference
findings he already made in the context of the adverse credibility
determination.” Biao Yang v. Gonzales, 496 F.3d at 277.
In this case, as is often the situation, fact-finding regarding credibility
overlaps with fact-finding as to whether an asylum application was frivolously
filed. Both determinations involve the identification of inconsistencies and
discrepancies in the asylum claim and consideration of any explanations
offered for them. There may be circumstances where the pertinent facts do not
overlap, and separate factual findings by an Immigration Judge willCite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
240
be necessary. However, neither fairness nor clarity requires an Immigration
Judge to separate and repeat those aspects of the credibility determination that
overlap with the frivolousness determination.
The frivolousness determination, however, requires explicit findings
as to “materiality” and “deliberate fabrication” that are not required for
an adverse credibility determination. As we indicated in Matter of Y-L-,
24 I&N Dec. at 156, “[T]he 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.”
B. Separate Consideration of Explanations for Inconsistencies
and Discrepancies
In a similar vein, the court has requested that we clarify whether separate
consideration of explanations for inconsistencies and discrepancies is required
under Matter of Y-L-. The court notes that “while the IJ considered Yang’s
explanations for the inconsistencies and discrepancies when making his
adverse credibility determination, he did not separately consider them when
making his frivolousness determination.” Biao Yang v. Gonzales, 496 F.3d
at 277.
To a large extent, explanations that are unconvincing in an adverse
credibility finding will also fail in the context of the frivolousness
determination. Two considerations, however, counsel in favor of a separate
analysis of explanations offered during the frivolousness determination. First,
the burden of proof differs as to credibility and frivolousness. The respondent
has the burden of demonstrating credibility, while the Government bears the
burden in the frivolousness determination. See Matter of Y-L-, 24 I&N Dec.
at 157-58. Explanations that fail to meet the burden in the credibility
determination may be sufficient to tip the balance in the other direction in the
context of the frivolousness determination.
Second, a separate assessment of the explanations for inconsistencies and
discrepancies is required for the frivolousness finding insofar as the
explanations offered may have a bearing on the determination of materiality
or deliberateness of fabrication. Therefore, while some incorporation
by reference from the adverse credibility findings and analysis is permissible,
the Immigration Judge’s frivolousness determination should separately address
the respondent’s explanations in the context of how they may have a bearing
on the materiality and deliberateness requirements unique to that
determination. The bases for a frivolousness determination should preferably
be addressed under a section of the decision separate and apart from the
credibility determination. Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
241
C. Explicit Findings that Fabrications Were “Deliberate” and “Material”
The court has asked that we clarify whether explicit findings as to
deliberateness and materiality are required. The court notes that in the
decision below “the IJ never explicitly stated that the fabrications were
‘deliberate,’ or that the fabrications were ‘material’ to Yang’s asylum claim.”
Biao Yang v. Gonzales, 496 F.3d at 277. In its discussion, the court states:
The IJ, while laying out the factual findings to support an adverse credibility
determination, certainly made comments which could lead to the inference that the
fabrications were “deliberate and material” (e.g., “[it] would appear that [Yang]
is simply making up testimony when confronted by inconsistencies,” “I am not
convinced that [Yang] has provided any credible testimony which would allow the
Court to determine what subjective fear, if any, [Yang] actually has of returning
to China”); however, the IJ never specifically made such findings. Y-L-, by contrast,
appears to specifically require an IJ to find that an asylum applicant “deliberately
fabricated material elements of his asylum claim.”
Id. (quoting Matter of Y-L-, 24 I&N Dec. at 157). As indicated in the
discussion of the previous two points, the Immigration Judge, after identifying
the inconsistencies or other reasons relied upon in the frivolousness finding,
must make specific findings based on cogent reasoning that material aspects
of the claim were deliberately fabricated. These findings should not simply be
left to be inferred or extrapolated from the strength of the overall adverse
credibility determination. As we stated in Matter of Y-L-, 24 I&N Dec. at 158,
“[T]he 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.”
D. Warnings That a Frivolousness Determination Is Being Considered
The court also asks for clarification of whether and when an Immigration
Judge may be required to provide additional warnings, during the merits
proceedings, that a frivolousness finding is being considered. The court
indicates that it finds Matter of Y-L- confusing on this point because the
Board’s decision initially states that “it would be a good practice for
an Immigration Judge who believes that an applicant may have submitted
a frivolous asylum application to bring this concern to the attention of the
applicant prior to the conclusion of proceedings.” Matter of Y-L-, 24 I&N
Dec. at 159-60 (emphasis added). The court points out that later in Matter
of Y-L-, the Board “appears to require” that the Immigration Judge bring
the frivolousness issue to the respondent’s attention where it would not
be obvious to an applicant that such a finding was being considered.
Biao Yang v. Gonzales, 496 F.3d at 276. Moreover, given the dramaticCite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
2
In Matter of Y-L-, we based our remand, in part, on concerns that the Immigration Judge
did not address a cover letter accompanying the second asylum application. The cover letter
offered an explanation for inconsistencies between the two asylum applications that may
have been relevant to the issue of deliberate fabrication. We indicated that had the
Immigration Judge “confronted the respondent with her concerns, she could have further
probed for clarification of the manner in which the original asylum application was
prepared.” Matter of Y-L-, 24 I&N Dec. at 161.
242
inconsistencies at issue in Matter of Y-L- and the Board’s indication that the
Immigration Judge should have probed for further explanation, the court
indicates that “it is possible to conclude that the [Board] intended to require
an IJ to specifically warn an applicant that he or she is contemplating
a frivolousness finding in most circumstances and not just with respect
to inconsistencies that are not obvious.” Id. at 276 n.4.
We clarify that our “good practice” suggestion in Matter of Y-L- was not
meant to add a blanket requirement that an Immigration Judge must provide
additional warnings during the course of the merits hearing that a frivolousness
determination is being considered.2
Sufficient notice is afforded when the
Immigration Judge explains the consequences of filing a frivolous asylum
application, either at the time the asylum application is filed or prior
to commencement of the merits hearing. See Chen v. Mukasey, 527 F.3d 935,
940 (9th Cir. 2008) (indicating that “the notice of consequences of knowingly
filing a frivolous application . . . must be issued to a petitioner by an IJ”); cf.
Ribas v. Mukasey, 545 F.3d 922, 930 (10th Cir. 2008) (concluding “as a matter
of law, that the written notice on the asylum form is sufficient”).
In making an adverse credibility determination, the opportunity for
explanation requires that an Immigration Judge not rely on inconsistencies that
take a respondent by surprise. See Ming Shi Xue v. BIA, 439 F.3d 111 (2d Cir.
2006) (remanding to further address an adverse credibility determination
where “neither the IJ nor the government identified the concerns undergirding
the IJ’s credibility finding before the IJ announced them in his ruling”).
If an inconsistency is obvious or glaring or has been brought to the attention
of the respondent during the course of the hearing, however, there
is no requirement that a separate opportunity for explanation be provided prior
to making the adverse credibility determination. See Ye v. Dep’t of Homeland
Sec., 446 F.3d 289 (2d Cir. 2006). We find that the same benchmark for
opportunity for explanation should apply to the frivolousness determination.
When the required frivolousness warnings have been given to the respondent
prior to the start of a merits hearing, the Immigration Judge is not required
to afford additional warnings or seek further explanation in regard
to inconsistencies that have become obvious to the respondent during the
course of the hearing.Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
243
We note that Immigration Judges often provide more notice and opportunity
for explanation to asylum applicants than that which is required by statute,
regulation, or minimum due process standards. Before making a frivolousness
determination, an Immigration Judge may, therefore, in the interests
of fairness, bring even obvious or glaring inconsistencies to the attention of the
respondent in order to provide an opportunity for an explanation.
As we stated in Matter of Y-L-, 24 I&N Dec. at 160 n.3, “The requirement
that the respondent be afforded a sufficient opportunity to explain is not
to be applied in a mechanical fashion.” The goal in every case is to assure that
the respondent has a fair opportunity to address any discrepancies that may
form the basis of the frivolousness determination. Whether a full and fair
opportunity to address inconsistencies has been afforded depends on the
totality of the circumstances, including the nature and extent of the
inconsistencies at issue, the manner in which the asylum application was
prepared, and whether the respondent was represented by counsel at the merits
hearing.
IV. FRIVOLOUSNESS DETERMINATION REGARDING
RESPONDENT’S APPLICATION
In this case the Immigration Judge provided adequate warnings of the
consequences of filing a frivolous asylum application. In addition to the
written warnings in the asylum application, the Immigration Judge gave the
respondent additional written and oral explanations of the consequences
of submitting a frivolous asylum application, both at the time the application
was filed and during the course of the merits hearing. As discussed below,
however, the Immigration Judge did not sufficiently identify the factors relied
upon in the frivolousness determination and did not make the specific findings
regarding materiality and deliberate fabrication required by Matter of Y-L-.
In the frivolousness determination, the Immigration Judge referred to two
categories of factors addressed in the adverse credibility determination:
(1) “multiple inconsistencies uttered by the respondent regarding the narrative
leading up to and from his alleged confrontation with family planning officials
on May 20th, 2002 ” and (2) “the rank inconsistency between the respondent’s
application for relief and the [airport statement].” These categorical references
lack the requisite specificity. Moreover, some of the factors within the
referenced categories do not necessarily support a frivolousness determination.
For example, the Immigration Judge found that “[t]he respondent has
essentially admitted, in any event, that he was not providing truthful testimony
at the airport.” The simple fact that the respondent admitted or was found
to have fabricated statements in the airport interview, which was conducted
prior to the submission of the asylum application and the frivolous warnings,Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
3 However, statements in an airport interview may be relevant to a determination that
an asylum application contains deliberate and materially false statements if the statements
in the airport interview are inconsistent with claims made in the asylum application.
4 Had this case involved differences between an initial asylum application and a later filing,
rather than an airport interview and a subsequent asylum application, the factors relied upon
by the Immigration Judge would provide a stronger basis for supporting the frivolousness
determination. See, e.g., Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 2008) (upholding
a frivolousness determination, even in the absence of “direct extrinsic evidence”
of fabrication, where the asylum application referred to multiple arrests, a subsequently filed
application for adjustment of status indicated that the applicant had never been arrested, and
the applicant was unable to resolve the inconsistencies).
244
is not an independent basis to find the asylum application to be frivolous,
because the statements may or may not relate to the factual basis for the
asylum application.3
Similarly, omissions in the airport interview, without
some explanation as to how they support a finding of a deliberate
misrepresentation in the asylum application, cannot be an independent basis
for a frivolousness determination.4
Turning to the requirement that there be a specific finding that material
inconsistencies were deliberately fabricated, the United States Supreme Court
has stated that “a concealment or misrepresentation is material if it ‘has
a natural tendency to influence . . . the decision of’ the decisionmaking body
to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988)
(quoting Weinstock v. United States, 237 F.2d 669, 701 (D.C. Cir. 1988)). The
Immigration Judge does not directly address materiality in the frivolousness
determination but refers to “rank inconsistency.” Assuming that this term
equates to “material inconsistency,” the decision fails to identify which
particular inconsistencies incorporated by reference were considered “rank.”
Some of the inconsistencies incorporated by the Immigration Judge are
relatively minor and would not, considered alone, enhance the respondent’s
claim to asylum. For example, whether the respondent stopped by his home
after leaving work on the morning of May 20, 2002, or went directly to the
family planning office does not advance the merits of his claim one way or the
other. Similarly, the place where the respondent went immediately after
escaping from authorities, the omission of any reference to his employment
in the airport interview, and the time that he first learned that the police were
looking for him appear to have only a tangential bearing on whether the
respondent deliberately fabricated a material element of his claim.
Given the severe consequences of a frivolousness determination and our
limited fact-finding ability on appeal, we will remand the record to permit the
Immigration Judge to specifically identify the inconsistencies or other factors
relied upon in the frivolousness determination and to further address whether
the respondent deliberately fabricated a material element of his asylumCite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680
5 The court has also directed us to address the respondent’s request for protection under the
Convention Against Torture, so on remand, the parties may present any relevant evidence
in regard to his current eligibility for that relief.
245
application under the standards provided in our decision in Matter of Y-L- and
in this opinion. Accordingly, the respondent’s appeal will be sustained in part,
and the record will be remanded for a new decision on frivolousness and for
further proceedings in regard to the respondent’s eligibility for protection
under the Convention Against Torture.5

ORDER: The appeal is sustained in part.
FURTHER ORDER: The record is remanded to the Immigration Judge for
further proceedings consistent with the foregoing decision and for the entry
of a new decision.