Cite as 24 I&N Dec. 151 (BIA 2007)

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

In re Y-L-, Respondent

Decided April 25, 2007

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) 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.

(2) 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.

(3) 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.

FOR RESPONDENT: Khagendra Gharti-Chhetry, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Virna A. Wright, Assistant

Chief Counsel

BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER,

Board Members.

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 section 241(b) of the Immigration and

Nationality Act, 8 U.S.C. § 1231(b) (2000), and protection 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”). On December 4, 2004, we

affirmed the Immigration Judge’s decision without opinion, and the

respondent subsequently filed a petition for review. On July 11, 2006, the

United States Court of Appeals for the Second Circuit remanded this case with

a request that we further consider the Immigration Judge’s finding that the

respondent’s asylum application was frivolous, and that we formulate

standards for deciding when an asylum application may be found to be

151

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

frivolous. Liu v. U.S. Dep’t of Justice, 455 F.3d 106 (2d Cir. 2006). Upon

further consideration, the respondent’s appeal from the Immigration Judge’s

finding that his asylum application was frivolous will be sustained, and that

part of our decision affirming the Immigration Judge’s ruling in that regard

will be vacated.

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

152

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

his amended asylum application, the respondent submitted an abortion

certificate, a fine receipt, and statements from his wife and the sister-in-law

who found the infant.

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. Section 208(d)(4)(A) of the Act, 8 U.S.C.

§ 1158(d)(4)(A) (2000), requires the Attorney General to advise an alien

applying for asylum, at the time of filing an application, of the consequences

153

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

of knowingly filing a frivolous application.

See also 8 C.F.R.

§ 1240.11(c)(1)(iii) (2006). Those consequences are stated in section

208(d)(6) of the Act, which provides as follows:

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.

8 C.F.R. § 1208.20 (2006).

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 by section 208(d)(4) of the Act.

Asylum Procedures, 65 Fed. Reg. 76,121, 76,128 (Dec. 6, 2000)

(Supplementary Information).

154

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

III. APPLYING THE STATUTORY AND REGULATORY

FRAMEWORK

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

section 208(d)(6) of the Act; 8 C.F.R. § 1208.20. In this case, the record

includes a written notice from the Immigration Judge entitled “Notice of

Privilege of Counsel and Consequences of Knowingly Filing a Frivolous

Application for Asylum,” which sets forth the requisite warnings of the

consequences of filing a frivolous asylum application.2 Additionally, the

Form I-589 contains a written warning that “[a]pplicants determined to have

knowingly made a frivolous application for asylum will be permanently

ineligible for any benefits under the Immigration and Nationality Act.” At the

1

In light of the regulatory requirement that there be evidence of a deliberate fabrication of

a material element of a claim, the term “fraudulent” may be more appropriate than the term

“frivolous” when applied to a questionable asylum application. See Barreto-Claro v. U.S.

Att’y Gen., 275 F.3d 1334, 1339, n.11 (11th Cir. 2001) (observing that the term “frivolous”

generally means “insignificant, trivial, silly or gay” (quoting Webster, New International

Dictionary (3d ed. 1961))). Obvious legal insufficiency of a claim does not support a

frivolousness finding. Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1318 (11th Cir. 2006).

2

The notice, which was entered into the record as an exhibit on March 5, 2002, states in

relevant part: “Before you file an asylum application (Form I-589) the law (section

208(d)(4) of the Immigration and Nationality Act) requires that you be advised specifically

about the consequences of knowingly filing a frivolous application for asylum in the United

States. If you knowingly file a frivolous application for asylum, YOU WILL BE BARRED

FOREVER from receiving any benefits under the Immigration and Nationality Act. A

frivolous application for asylum is one which contains statements or responses to questions

that are deliberately fabricated. Not being granted asylum does not mean that your

application is frivolous.”

155

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

time of filing the original application, then counsel for the respondent assured

the Immigration Judge that he had informed the respondent of the

consequences of filing a frivolous application for asylum. As the respondent

has not asserted a lack of notice of the consequences of filing a frivolous

asylum application, we will focus our attention on the other requirements for

a frivolousness finding.

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.” 8 C.F.R. § 1208.20. The regulation further

provides that “an asylum application is frivolous if any of its material elements

is deliberately fabricated.” Id. An element of a claim is “fabricated” when it

misrepresents the truth. Black’s Law Dictionary 597 (8th ed. 2004) (stating

that “fabricated evidence” is “[f]alse or deceitful evidence”). A “deliberate”

fabrication involves a knowing and intentional misrepresentation of the truth.

Id. at. 459 (stating that “deliberate” means “[i]ntentional; premeditated; fully

considered”). Therefore, an Immigration Judge’s specific finding that a

respondent deliberately fabricated a material element of his asylum claim

constitutes a finding that he 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

156

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

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 8 C.F.R. § 1240.8(d) (2006) (providing that

the alien shall have “the burden of establishing that he or she is eligible for

any requested benefit or privilege and that it should be granted in the exercise

of discretion”). Moreover, “[i]f the evidence indicates that one or more of the

grounds for mandatory denial of the application for relief may apply, the alien

shall have the burden of proving by a preponderance of the evidence that such

grounds do not apply.” Id.

A frivolousness finding, unlike a determination in regard to eligibility for

a particular form of relief governed by 8 C.F.R. § 1240.8(d), is a preemptive

determination which, once made, forever bars an alien from any benefit under

the Act. Because of the severe consequences that flow from a frivolousness

finding, the preponderance of the evidence must support an Immigration

Judge’s finding that the respondent knowingly and deliberately fabricated

material elements of the claim. 8 C.F.R. § 1208.20. Under the regulation,

plausible explanations offered by the respondent must be considered in the

ultimate determination whether the preponderance of the evidence supports

a frivolousness finding.

157

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

In regard to the requisite degree of proof, the court in Liu v. U.S. Dep’t of

Justice, supra, at 114, suggests that an emerging principle may be that in light

of the serious consequences stemming from a frivolousness finding, “concrete

and conclusive evidence of fabrication” should be required to support a

finding of frivolousness. The court makes this suggestion after reviewing four

published decisions upholding frivolousness findings and concluding that

each involved “tangible evidence of fabrication that could not reasonably be

disputed.” Id. at 115 (citing Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th

Cir. 2005) (medical records submitted by the alien were identified by the

hospital as fraudulent); Selami v. Gonzales, 423 F.3d 621, 626-27 (6th Cir.

2005) (copied documents provided by the alien were clear forgeries when

compared to true copies of the originals); Efe v. Ashcroft, 293 F.3d 899, 908

(5th Cir. 2002) (alien’s claim regarding age was conclusively disproved by

dental records); Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1339 (11th

Cir. 2001) (alien admitting he lied in his previously filed asylum application).

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

158

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

to questions of law, discretion, and judgment, but review findings of fact only

for clear error. 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii) (2006). We may not engage

in fact-finding of our own other than to take administrative notice of

commonly known facts. 8 C.F.R. § 1003.1(d)(3)(iv). Determining whether

a fabrication was knowing or deliberate is a factual question of intent that is

reviewed for clear error. See United States v. Awadallah, 349 F.3d 42, 65 (2d

Cir. 2003). Whether a fabrication was material involves mixed questions of

fact and law. See United States v. Gaudin, 515 U.S. 506, 521 (1995).

Whether the Immigration Judge properly applied the regulatory framework is

a question of law.

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.” 8 C.F.R. § 1208.20. The

regulation requires that the alien be given “ample opportunity during his

hearing to address and account for any deliberate, material fabrications upon

which the IJ may base a finding of frivolousness.” Mingkid v. U.S. Att’y Gen.,

468 F.3d 763, 769 (11th Cir. 2006) (quoting Scheerer v. U.S. Att’y Gen.,

supra, at 1317).

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

159

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

applicant may have submitted a frivolous asylum application to bring this

concern to the attention of the applicant prior to the conclusion of

proceedings. See, e.g., Farah v. Ashcroft, 348 F.3d 1153, 1158 (9th Cir.

2003) (finding that where the Immigration Judge relied on different

inconsistencies in making the adverse credibility determination from those

used in making the frivolousness determination, the respondent lacked a

sufficient opportunity to explain the discrepancies related to the frivolousness

finding). In some cases, the Government may raise the issue of frivolousness

during the course of the hearing. See, e.g., Ignatova v. Gonzales, supra, at

1214 (noting that the Government filed a motion requesting that the

Immigration Judge address whether the application was frivolous). In other

situations, the Immigration Judge may raise the issue and afford the

respondent an opportunity to respond with an explanation or corroborating

evidence. See, e.g., Selami v. Gonzales, supra (observing that the

Immigration Judge adjourned the hearing to afford the respondent an

opportunity to respond to concerns that documents submitted in support of his

asylum application appeared to be forged).

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

3

The requirement that the respondent be afforded a sufficient opportunity to explain is not

to be applied in a mechanical fashion. There may be situations in which the deliberate

fabrication of a material aspect of the asylum claim is so clear on the record that a formal

request for an explanation would be a needless exercise. See, e.g., Barreto-Claro v. Att’y

Gen., supra (finding that the respondent’s admissions that he stated falsely on his first

asylum application that he had never before applied for refugee or asylum status and that he

gave a fraudulent account of how he came to the United States established that he

deliberately fabricated facts that were materially relevant to the question whether he had

been firmly resettled in another country prior to arrival in the United States).

160

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

back to him, and that he did not have a chance to correct mistakes in the

original application prior to the time it was filed in Immigration Court.4

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.” 8 C.F.R. § 1208.3(c)(2) (2006). The

respondent’s first attorney signed the declaration under Part E of the original

asylum application verifying that the information in the application “was

provided to me by the applicant and that the completed application was read

to the applicant in his or her native language or a language he or she

understands for verification before he or she signed the application in my

presence.”

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

4

The respondent’s concession that his first statement included erroneous information is not

enough in and of itself to indicate that he knowingly filed an application containing a

deliberate fabrication of a material element of his claim. He contends that he was unaware

of the incorrect information included in that application and unaware that his wife’s forced

abortion or their fines for illegally adopting a child could be relevant to a claim for asylum.

As we are limited to reviewing the Immigration Judge’s findings for clear error and do not

engage in factual determinations, our focus on appeal is limited to whether the evidence

supports a finding in regard to the factors in the amended asylum application identified by

the Immigration Judge as deliberately fabricated or implausible material elements of the

claim.

161

Cite as 24 I&N Dec. 151 (BIA 2007)

Interim Decision #3563

evidence is included the record). Further inquiry could have included a

request for corroborating evidence from former counsel regarding the manner

in which the first asylum application was prepared.5

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.

5

When an applicant for asylum claims ineffective assistance of counsel as an exception to

the 1-year deadline for filing an asylum application, for example, he must file an affidavit

describing the agreement entered into with counsel, inform counsel whose integrity or

competence is being impugned of the allegations being leveled and provide an opportunity

to respond, and indicate whether a complaint has been filed with appropriate disciplinary

authorities with respect to any violation of counsel’s ethical or legal obligations. 8 C.F.R.

§ 1208.4(a)(5)(iii) (2006); see also Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d,

857 F.2d 10 (1st Cir. 1988) (setting forth the same requirements for motions to reopen based

on ineffective assistance of counsel).

162