Mei Juan Zheng v. Mukasey

• Decision Date: 01 February 2008
• Docket Number: Docket No. 04-5027-ag.
• Citation: 514 F.3d 176
• Parties: MEI JUAN ZHENG, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

514 F.3d 176

MEI JUAN ZHENG, Petitioner, v. Michael B. MUKASEY,¹ Attorney General of the United States, Respondent.

Docket No. 04-5027-ag.

United States Court of Appeals, Second Circuit.

Argued: October 3, 2007.

Decided: February 1, 2008

H. Raymond Fasano, Madeo & Fasano, New York, NY, for Petitioner.

R. Alexander Goring, Office of Immigration Litigation, Civil Division (Alice H. Martin, United States Attorney for the Northern District of Alabama; Jenny L. Smith, Assistant United States Attorney, on the brief), for Respondent.

Before: FEINBERG, SOTOMAYOR, and WESLEY, Circuit Judges.

FEINBERG, Circuit Judge:

A person who makes an application for asylum determined to be "frivolous," or deliberately and materially false, is subject to a grave penalty: permanent ineligibility for most forms of relief under the immigration laws. Petitioner in this case, Mei Juan Zheng ("Zheng"),² deliberately filed a materially false asylum application, but withdrew it before the immigration judge ("IJ") made a final determination of the application. Zheng seeks review of an August 2004 decision of the Board of Immigration Appeals ("BIA") affirming an April 2003 decision of the IJ finding that Zheng knowingly made a frivolous application for asylum. We remand her case to the BIA to clarify whether she is properly subject to the frivolousness bar.

I. BACKGROUND

Zheng, a native and citizen of the People's Republic of China, entered the United States illegally in 2000 with the help of a "snakehead," or smuggler. She was subsequently served with a Notice to Appear charging her as removable as an immigrant not in possession of a valid entry or travel document, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Zheng filed an application for asylum and withholding of removal, in which she alleged that local birth control officials forced her to have an abortion and insisted that she accept an intrauterine device.

IJ Gabriel C. Videla engaged in the following exchange with Zheng at a hearing in August 2000:

Q. Now, before I can accept the application I have to give you some warnings. If I later determine that this application is frivolous, this means it's an application that contains false information, then you will be forever barred from ever receiving any Immigration benefits under our laws. Let me explain to you what that means. If, for example, you live here for the next 20 years or you may be a U.S. citizen or you have U.S. citizen children it would make no difference. You would still not be able to be here legally in this country again if I make a determination that you filed a frivolous application. Have you understood this?

A. Yes. I understand.

Q. And having understood this do you still represent to the Court under oath that everything on this application is true and accurate?

A. Yes.

The IJ also gave Zheng a written copy of the warning.

In January 2001, Zheng withdrew her asylum application with prejudice at a calendar hearing. She filed a new application in May 2001, seeking withholding of removal under the Convention Against Torture on the grounds that the snakehead to whom she owed money would harm her if she returned to China, and that Chinese officials would jail and torture her for illegally entering the United States. In her new application, Zheng admitted that, on the snakehead's advice, she had lied about her birth control claim for fear of being returned to China. Zheng also acknowledged the lie at an April 2003 hearing, saying that she had made up the birth control claim but had since decided, "I cannot lie to the Immigration Judge. I have to tell him the truth."

After Zheng finished testifying, the IJ asked Zheng's lawyer to explain whether he "should or should not make a frivolousness finding." Her lawyer answered that the IJ had discretion whether to make a frivolousness finding, and that Zheng should be treated leniently because she had voluntarily come forward with the truth more than two years earlier and was only 18 when she entered the United States. The. IJ agreed that Zheng's forthrightness and her youth were "favorable factors," but he concluded that he lacked discretion under the statute and implementing regulations to avoid a frivolousness finding. He also concluded that Zheng's withdrawal of her false application had no effect on the applicability of the frivolousness bar. Because the IJ found that Zheng had deliberately made a materially false asylum application after receiving adequate notice, he entered a frivolousness finding.³

The BIA affirmed the IJ's decision without opinion on August 27, 2004. Zheng timely appealed.

II. DISCUSSION

Title 8, Section 1158(d) of the United States Code provides in relevant part:

(4) Notice of privilege of counsel and consequences of frivolous application

At the time of filing an application for asylum, the Attorney General shall

(A) advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum....

...

(6) Frivolous applications 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 chapter, effective as of the date of a final determination on such application.

8 U.S.C. § 1158(d). An asylum application is "frivolous" if any of its material elements is deliberately fabricated. 8 C.F.R. § 208.20; cf. In re Y-L, 24 I. & N. Dec. 151, 155 n. 1 (B.I.A.2007) ("Obvious legal insufficiency of a claim does not support a frivolousness finding." (citing Scheerer v. U.S. Att'y Gen., 445 F.3d 1311, 1318 (11th Cir.2006))). Thus, if an IJ determines that an alien knowingly made an application for asylum with one or more deliberately fabricated material elements, and the alien received proper notice, the alien is permanently barred from receiving most benefits under the immigration laws.⁴

An alien is entitled to a variety of procedural safeguards before being subject to this permanent bar. They include

(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.

Y-L, 24 I. & N. Dec. at 155 (applying 8 U.S.C. § 1158(d)(4)(A) and 8 C.F.R. § 208.20). The ETA has clarified that the IJ must address the question of frivolousness separately from any adverse credibility determination, id. at 156, and must provide "cogent and convincing reasons" for finding, by a preponderance of the evidence, deliberate fabrication of a material element of the claim, id. at 158.

Zheng's initial petition unquestionably contained deliberately fabricated material elements, and she received the safeguards described in the BIA's decision in Y-L. First, before accepting her initial application, the IJ gave Zheng both oral and written warnings about the consequences of proceeding with a frivolous application. Zheng said she understood the consequences, and she swore that her application was truthful. Second, the IJ made a specific finding that Zheng knowingly filed a frivolous asylum application, which was not part of an adverse credibility determination. Third, as noted above, the evidence supporting the frivolousness finding was uncontroverted. Finally, Zheng was given an opportunity to account for the falsehood; she explained that she had intentionally lied because of the snakehead's instructions to do so.⁵

But although we conclude that Zheng's petition contained deliberately fabricated material elements and that the IJ followed the appropriate procedures, we remand to the BIA to consider antecedent issues concerning the applicability of the frivolousness statute to an asylum application that is filed and then withdrawn before a decision on its merits. Specifically, we invite the BIA to consider the following questions: (1) Is the IJ's authority to "determine[] that an alien has knowingly made a frivolous application for asylum" limited to circumstances in which the IJ makes "a final determination on such application"? 8 U.S.C. § 1158(d)(6) (emphasis added). (2) Does an IJ retain any discretion under 8 U.S.C. § 1158(d)(6) to decline to make a frivolousness finding even if she finds that the statutory and regulatory conditions for frivolousness have been met? We discuss these questions in turn.

1. Whether the IJ's authority to "determine[] that an alien has knowingly made a frivolous application for asylum" is limited to circumstances in which the IJ makes "a final determination on such application."

A provision in § 1158(d)(6) states that, if the Attorney General determines that an alien has knowingly made a frivolous asylum application, "the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application." 8 U.S.C. § 1158(d)(6) (emphasis added). No final determination was ever made on Zheng's fraudulent asylum application, because she withdrew it at a master calendar hearing, before she testified in support of it and before the IJ issued any decision.

This language is susceptible of at least two meanings, each of which is potentially problematic. Read literally, the statute seems to state that a frivolousness finding concerning an asylum application may take effect only after a final determination is made on the same application. If there were never a final determination on the application—if it were withdrawn, for instance—then the frivolousness finding would not take effect at all. Because an alien may...