In re Y-L-

• Decision Date: 25 April 2007
• Docket Number: Interim Decision No. 3563.
• Citation: 24 I&N Dec. 151
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: In re Y-L-, Respondent.

24 I&N Dec. 151

In re Y-L-, Respondent.

Interim Decision No. 3563.

Board of Immigration Appeals.

Decided April 25, 2007.

(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 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 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 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:

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