In re M-M-A.

• Decision Date: 11 March 2022
• Docket Number: 4039
• Citation: 28 I&N Dec. 494
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: Matter of M-M-A-, Respondent

28 I&N Dec. 494

Matter of M-M-A-, Respondent

No. 4039

Court of Appeals of U.S. Department of Justice Executive Office For Immigration Review Board of Immigration Appeals

March 11, 2022

When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.

FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant Chief Counsel

BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.

WILSON, APPELLATE IMMIGRATION JUDGE

In a decision dated June 26, 2018, the Immigration Judge granted the respondent's application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018), and his application for a waiver of inadmissibility under section 212(i) of the Act, 8 U.S.C. § 1182(i) (2018). The Department of Homeland Security ("DHS") has appealed from this decision, arguing that the respondent filed a frivolous asylum application and was therefore barred from the requested relief. See section 208(d)(6) of the Act, 8 U.S.C. § 1158(d)(6) (2018). The appeal will be sustained, the Immigration Judge's decision vacated, and the record remanded.

I. FACTUAL AND PROCEDURAL HISTORY

The following facts are undisputed. The respondent was admitted to the United States in 2007. In August 2010, he filed an affirmative asylum application with United States Citizenship and Immigration Services ("USCIS"). In his application, the respondent claimed that his father was a founder of, and held a leadership position in, the Southern Movement in Yemen, which called for the secession of South Yemen. He stated in his

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[28 I&N Dec. 495] application that he and his brother were also members of this group and that he had been a member since 2003. The respondent claimed that his father was being held in prison in Yemen because of his involvement in this group and that arrest warrants had been issued for the respondent and his brother. He further claimed that if he entered Yemen, he would immediately be arrested and imprisoned and that he would likely be tortured. The respondent signed the application, swearing to the truth of its contents. He attached a declaration repeating this same claim, as well as a document purporting to be a Yemeni arrest warrant. He attended two administrative interviews with asylum officers and at both interviews, he swore to tell the truth. The respondent received notice of the consequences of filing a frivolous asylum application and acknowledged that if he filed a frivolous asylum application, he could be "permanently ineligible for any benefits" under the Act. Section 208(d)(4)(A), (6) of the Act. USCIS denied the respondent's application and placed him in removal proceedings.

At the Immigration Court, the respondent sought adjustment of status based on his marriage to a United States citizen. After the DHS stated that the respondent might be barred from adjustment of status because his asylum application suggests he provided material support to a terrorist group, the respondent withdrew his asylum application. In a filing to the Immigration Court, he stated that he had poor English skills when he filed his asylum application and thus did not know how to properly explain what happened to him in Yemen. He further claimed that he mischaracterized certain information regarding his involvement with the Southern Movement in Yemen and wished to retract the information. Acknowledging that these misrepresentations rendered him inadmissible, he filed a Form I-601, Application for Waiver of Grounds of Inadmissibility, seeking to waive his inadmissibility under section 212(a)(6)(C)(i) of the Act for fraud or misrepresentation of a material fact.

At a hearing before the Immigration Court, the respondent testified that his written declaration and his testimony at his asylum interviews were false. He testified that neither he nor his family were members of the Southern Movement, his father was never imprisoned in Yemen, and an arrest warrant was never issued for the respondent. He also admitted that he submitted a false Arabic language arrest warrant. He testified that although his friends completed his asylum application, he lied to the asylum officers under oath. He also testified that his work permit was going to expire and he was told that filing the asylum application would fix the situation.

The DHS asked the Immigration Judge to find that the respondent filed a frivolous asylum application. The Immigration Judge found that the respondent's asylum claim "hinged upon this false information," which the respondent admitted was untrue and that the misrepresentations were

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[28 I&N Dec. 496] material and willful." Based on the respondent's fraudulent misrepresentations, the Immigration Judge found that he was inadmissible under section 212(a)(6)(C)(i) of the Act, but eligible for a waiver of inadmissibility under section 212(i) of the Act.

Despite finding that the respondent admitted that his asylum application was fraudulent, the Immigration Judge held that she was not required to find that the respondent's asylum application was frivolous or that the respondent was permanently barred from relief under section 208(d)(6) of the Act. The Immigration Judge declined to enter a frivolousness finding. Instead, she determined that the respondent merited a waiver of inadmissibility and granted his application for adjustment of status.

On appeal, the DHS argues that although it properly raised the issue of the mandatory bar to relief based on a frivolous asylum application under section 208(d)(6) of the Act, the Immigration Judge ignored the issue and did not apply the analytical framework set forth in Matter of Y-L-, 24 I&N Dec. 151, 155-60 (BIA 2007). It further argues that when it raises the frivolousness issue, an Immigration Judge is required to make the relevant findings of facts and conclusions of law regarding whether the mandatory bar to relief applies before considering a respondent's eligibility for relief.

II. ANALYSIS

The issue before this Board is whether, when the DHS alleges that an applicant is ineligible for relief based on a frivolous asylum application, the Immigration Judge is required to make predicate findings of fact and conclusions of law to determine whether the requirements for a frivolous asylum application have been satisfied. We review this legal issue de novo. See 8 C.F.R. § 1003.1(d)(3)(ii) (2021).

Section 208(d)(6) of the Act provides:

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) [of the consequences of such an application], 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 implementing regulation further 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

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[28 I&N Dec. 497] 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 (2020).

A frivolousness finding "is a preemptive determination which, once made, forever bars an alien from any benefit under the Act." Matter of Y-L-, 24 I&N Dec. at 157. Given the serious consequences of a frivolousness finding, specific requirements must be met before an Immigration Judge or the Board can enter such a determination. Id. at 155. Among these is a specific finding that a respondent "knowingly and deliberately fabricated material elements of the claim." Id. at 156-57; see 8 C.F.R. § 1208.20. Either an Immigration Judge or the DHS can raise the issue of a frivolous asylum application. See Matter of Y-L-, 24 I&N Dec. at 159-60. However, an "Immigration Judge is not required to evaluate whether an application is frivolous if the [DHS] does not raise the issue." Matter of X-M-C-, 25 I&N Dec. 322, 324 n.1 (BIA 2010).

Where, as here, the DHS argues that the mandatory bar for filing a frivolous asylum application applies, the Immigration Judge errs in not addressing the issue and making sufficient factual findings on whether the requirements for a frivolousness determination have been met. Immigration Judges must make sufficient findings of fact and conclusions of law on issues raised before them to ensure the Board can conduct effective appellate review. See Matter of A-P-, 22 I&N Dec. 468, 474 (BIA 1999) (stating that the Immigration Judge's decision must provide the Board with adequate means of performing its "primary appellate function of reviewing the bases stated for the Immigration Judge's decision in light of the arguments advanced on appeal").

During removal proceedings, when the DHS raises an issue of statutory eligibility for relief, an Immigration Judge may not grant...