Introduction: Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016)

On December 13, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016) [PDF version]. In this decision, which arose from the jurisdiction of the Third Circuit, the Board distinguished the case from the Third Circuit decision in Luciana v. Att’y Gen. of the U.S., 502 F.3d 273 (3d Cir. 2007) in finding that an untimely asylum application can be found to be frivolous where the applicant made a misrepresentation pertaining the timeliness of the application. For cases arising outside of the Third Circuit, the Board reaffirmed that it stands by the Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010), which affords Immigration Judges with broader authority to find that an untimely asylum application was frivolous than does Luciana. In this article, we will review the factual and procedural history, the Board’s analysis and decision, and what the new precedent means going forward.

Please see our article on frivolous applications for withholding of removal to learn about how the issues discussed in this case apply in that context as well [see article]. To learn about frivolous applications for asylum and withholding of removal in general, please see our full article [see article].

Factual and Procedural History: 26 I&N Dec. at 872-73

The respondent, a native and citizen of Guinea, arrived in the United States on November 22, 1997, as a nonimmigrant visitor. In 2000, the respondent sought asylum, notwithstanding the statutory requirement that an individual must seek asylum within one year of entry. On the respondent’s asylum application, he falsely stated that he had arrived in the United States in 1999 and that he had been a Mauritanian slave.

The then-Immigration and Nationality Service denied the application for asylum for failure to provide sufficiently credible evidence that it was timely filed. The INS then initiated removal proceedings. In 2002, the respondent was ordered removed in absentia. The respondent’s motion to rescind his removal order was granted in 2012.

The respondent then withdrew his asylum application before the Immigration Judge (IJ) and sought adjustment of status in conjunction with waivers of inadmissibility. However, the IJ found that the respondent had deliberately fabricated his entry date on his asylum application in 1999. The IJ further found that the respondent had, therefore, knowingly made a frivolous asylum application. The respondent did not dispute that he had deliberately fabricated his date of entry on his asylum application. However, the respondent cited to a Third Circuit (the case arises in the jurisdiction of the Third Circuit) precedent decision in Luciana v. Att’y Gen. of the U.S., 502 F.3d 273 (3d Cir. 2007) [PDF version], in claiming that his asylum application should not be found frivolous based on findings that it was untimely filed and no exceptions to the filing deadline applied, because the fabricated elements on the asylum application were not “material” to the merits of his claim for asylum. The IJ rejected the respondent’s arguments and found that he was barred under section 208(d)(6) of the INA from applying for adjustment of status and for the waivers he sought because he had filed a frivolous asylum application.

The respondent appealed to the BIA. On appeal, he argued that the IJ had erred in finding that he was subject to section 208(d)(6) for having filed a frivolous asylum application in light of the Third Circuit precedent decision in Luciana.

Issue for the Board: 26 I&N Dec. at 873

The issue before the Board was to determine whether an application for asylum that was untimely filed could be found to be frivolous under section 208(d)(6) of the INA. This issue arises from the fact that an untimely filed application for asylum is not approvable solely by virtue of having been untimely filed. Regardless of the severity of a misrepresentation of the merits of an asylum claim that was untimely filed, it could not persuade an adjudicator to approve the application for asylum because the application is time-barred. The respondent argued, in light of Luciana, that the fact his application was untimely filed (with no exceptions available) and therefore unapprovable should have precluded a finding that section 208(d)(6) applied because the fabrication was not material to any issue raised by that asylum application. The government argued that section 208(d)(6) should apply. For reasons that we will explain, the Board found that an asylum application can be found to be frivolous even if it is untimely filed.

Analysis and Decision: 26 I&N Dec. at 873-79

Statutory Background and Relevant Precedent: 26 I&N Dec. at 873-74

The Board began by reproducing section 208(d)(6) of the INA 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 [INA 208(d)(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.

Therefore, if an alien is found to have filed a frivolous asylum application, he or she will be ineligible for any benefits in the INA on a permanent basis. In the instant case, the finding that the respondent had made a frivolous asylum application rendered him ineligible for adjustment of status and for relief from removal — both benefits found in the INA.

The Board went through its own case-law regarding section 208(d)(6). Its first published decision on the issue was the Matter of Y-L-, 24 I&N Dec. 151, 153-63 (BIA 2007) [PDF version]. In the Matter of Y-L-, the Board set forth the following framework for determining whether an application for asylum was frivolous:

1. The individual must have received notice of the consequences of filing a frivolous application for asylum (see section 208(d)(4)(A) of the INA);
2. The IJ or the BIA must make a specific finding that the individual filed a frivolous asylum application;
3. There must be adequate evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and
4. There must be an indication that the individual was afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

The IJ or BIA is, therefore, required to find that the record supports both that the fabrication was material to the asylum application and also that the fabrication was deliberate. An immaterial fabrication or an inadvertent error will not trigger section 208(d)(6) under the Board’s precedent in the Matter of Y-L-.

In the Matter of B-Y-, 25 I&N Dec. 236, 240 (BIA 2010) [PDF version], the Board clarified its previous decision in finding that the IJ need not separate and repeat aspects of an adverse credibility determination “that overlap with the frivolousness determination.” This means that factual findings that support an adverse credibility determination may be used in support of a frivolousness determination. However, the Board was clear in recognizing that a frivolousness determination requires both “materiality” and “deliberate fabrication,” whereas an adverse credibility determination merely weighs against the favorable exercise of discretion does not require proof of materiality and deliberate fabrication.

Finally, in the Matter of X-M-C-, 25 I&N Dec. 322, 324-25 (BIA 2010) [PDF version], the Board found that a finding of frivolousness may be made even where no final decision has been reached on the merits of the pending asylum application. Furthermore, provided that all of the safeguards laid out in the Matter of Y-L- have been followed, the withdrawal of an asylum application does not preclude a finding of frivolousness. We also discuss the Matter of X-M-C- in our article on applying for withholding of removal [see section].

Analysis: 26 I&N Dec. 874-79

The respondent did not challenge the IJ’s findings that he had received sufficient notice of the consequences of filing a frivolous asylum application as required by the Matter of Y-L-. Furthermore, the respondent also did not challenge the IJ’s finding that he had knowingly filed a frivolous asylum application due to his factual misrepresentations in both the application and during the interview pertaining to his date of entry and to his claim of having been a Mauritanian slave. For the following reasons, the Board did not address either of these points further.

The Board focused on the IJ’s finding that the respondent had deliberately misrepresented a material element of his asylum application by falsifying his date of entry into the United States in order to appear to have filed a timely application. Specifically, the IJ found that this misrepresentation was material to whether the respondent satisfied the requirement found in section 208(a)(2)(B) that an asylum application must be filed within one year of an alien’s entry into the United States. Although the respondent relied upon Luciana v. Att’y Gen. of the U.S., 502 F.3d 273 (3d Cir. 2007), which is binding in this case, the IJ found that the instant case was distinguishable in that the respondent’s misrepresentation was material to whether his application for asylum was time-barred, whereas the misrepresentation at issue in Luciana was irrelevant to the timeliness of the asylum application but was relevant to merits of the application. In order to understand the IJ’s distinction, we must look closely at the decision in Luciana.

Luciana not Applicable: 26 I&N Dec. 774-77

The Board explains that Luciana similarly concerned an individual who had filed an untimely application for asylum. However, unlike in the instant case, the respondent in Luciana did not make a misrepresentation that pertained to the timeliness of her application. Rather, the respondent’s misrepresentation in Luciana had to do only with the merits of her claim for asylum, and the Board held in an unpublished decision that section 208(d)(6) applied even though the application was untimely filed. However, on appeal, the Third Circuit reversed the Board in Luciana, finding that the misrepresentation was not material to the asylum application because it was of no consequence to whether the application was ultimately approvable, “no matter how persuasive or compelling it might have been.” The Third Circuit’s position was that because the application as untimely filed, the misrepresentations on the merits of the claim in Luciana were not material to whether the claim was approvable.

The respondent in the instant case construed Luciana as meaning that no application that is untimely filed can be found to be frivolous. However, the Board agreed with the IJ that the instant case was distinguishable from Luciana because the respondent’s misrepresentation “concerns a threshold question regarding his eligibility to seek asylum,” namely, whether the application had been filed within one year of the date of entry. The Board found that the IJ had properly found that the respondent’s misrepresentation of his date of entry was capable of influencing the then-INS regarding his eligibility to apply for asylum. Had the respondent’s only misrepresentation been regarding the merits of his asylum application and not his eligibility to apply for asylum, the IJ and the Board would have been precluded from finding that the application was frivolous under Luciana, because the application would have been time-barred regardless of the respondent’s other misrepresentations.

The Board found further support for its position in a precedent Ninth Circuit decision titled Kalilu v. Mukasey, 548 F.3d 1215 (9th Cir. 2008) [PDF version]. In Kalilu, the Ninth Circuit rejected an alien’s reliance on Luciana where the alien had made a misrepresentation regarding the date of his entry into the United States. The Ninth Circuit held similarly in Kulackchyan v. Holder, 730 F.3d 993, 995-96 (9th Cir. 2013) [PDF version].

For these reasons, the Board held that, absent contrary controlling authority, “a time-barred asylum application may be determined to be frivolous where it contains a deliberate misrepresentation regarding the applicant’s date of entry that is material to the threshold question of the applicant’s eligibility to seek asylum.” In short, if an applicant who files an untimely application for asylum makes a misrepresentation pertaining to the timeliness of the application (e.g., fabricating the date of entry), the IJ or the BIA may find the application to be frivolous provided that all of the other requirements are met.

Applicability of the Matter of X-M-C-: 26 I&N Dec. at 877-79

Although the Board found that Luciana was not controlling in the instant case, it noted that it is inconsistent with the Board’s precedent decision in the Matter of X-M-C-. In the Matter of X-M-C-, the Board held that the materiality of a fabricated element of an asylum application is determined at the time the application is “made” or “filed,” meaning that a finding of frivolousness can be issued in the absence of a final decision on the merits of the application. The Matter of X-M-C- explicitly permits IJs to find that an application was frivolous even if the application is mooted as a result of a finding that the applicant was not entitled to file the application. This decision is patently inconsistent with Luciana to the extent that Luciana prohibits a finding that an untimely asylum, and therefore unapprovable, application is frivolous based on fabrications related to the merits of the application.

The Board explained that its position has support in the Sixth Circuit precedent decision in Ghazali v. Holder, 585 F.3d 289, 291-94 (6th Cir. 2009) [PDF version]. In Ghazali — which predated the Matter of X-M-C- — the Sixth Circuit held that IJs may issue frivolousness findings in connection with time-barred asylum applications. Specifically, the Sixth Circuit noted that an IJ has jurisdiction over the merits of an asylum application once it is filed, and that the time-bar provision found in section 208(a)(2)(B) of the INA does not preclude an IJ from ruling on the merits of the asylum application or finding it untimely and, alternatively, ruling also on the merits. To this effect, the Sixth Circuit reasoned that the merits of a time-barred asylum application may still be considered as a basis for withholding of removal (see 8 C.F.R. 1208.3(b) (2016)).

In Ghazali, the Sixth Circuit explicitly rejected Luciana. The Sixth Circuit specifically disagreed with Luciana to the extent that Luciana prevents an IJ from finding that any misrepresentation in an asylum application is immaterial once it finds that it was untimely filed. The Sixth Circuit’s position in Ghazili is that an IJ is permitted to deny an untimely asylum application on alternative merits-based grounds, and the IJ therefore retains the authority to find that the application was frivolous.

The Board explained that it agreed with Ghazili and its own decision in the Matter of X-M-C-, that the INA does not prohibit an IJ from making a frivolousness finding based on the merits of a time-barred application for asylum. The Board noted that this position has been supported in the following Circuit cases:

Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) [PDF version]; and
Mingkid v. U.S. Att’y Gen., 468 F.3d 763, 768 (11th Cir. 2006) [PDF version].

Additionally, in a more recent case titled Yousif v. Lynch, 796 F.3d 622, 633 (6th Cir. 2015) [PDF version], the Sixth Circuit noted that the Board and the various circuit courts “almost uniformly permit an [IJ] to make a frivolous finding so long as the [IJ] finds that the misrepresentations were material to the application when the application was filed, even if the application as later mooted for some other reason.”

For these reasons, the Board held that it would continue to follow the Matter of X-M-C- outside of the Third Circuit, and it would only follow Luciana within the jurisdiction of the Third Circuit. In effect, this means that if the instant case had arisen outside of the Third Circuit, the Board would likely have permitted the IJ to find that the respondent’s application was frivolous based on the merits of the application itself pertaining to the false claim of enslavement and not solely for the fabrication related to its timeliness.

Decision: 26 I&N Dec. at 877

The Board agreed with the IJ’s determination that the application was frivolous, and it affirmed the IJ’s determination that the respondent was barred from immigration relief by section 208(d)(6) of the INA.

Conclusion

There are two important and interesting aspects in this decision.

The first point is that the Board has taken the position that Luciana does not bar a finding that a time-barred application for asylum is frivolous where the applicant made a misrepresentation relating to the timeliness of the application. However, under Luciana, the Board cannot make a frivolousness finding related to the merits of an untimely filed asylum application in a case arising from the Third Circuit. For reference, the Third Circuit covers cases arising from Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands. It remains to be seen whether the Third Circuit will accept the Board’s parsing of Luciana in the instant case.

The second point of the decision is that the Board decided to stand by the Matter of X-M-C- for cases arising outside of the Third Circuit. This means that where IJs are not bound by Luciana, both IJs and the Board can make a frivolousness finding based on the merits of an untimely filed asylum application.

The Board observed in the instant case that the IJ had found that the respondent would have been eligible for immigration relief had he not been barred for making a frivolous application for asylum. This goes to show the severity of the immigration penalties for frivolous asylum applications. An individual who is considering seeking asylum should consult with an experienced immigration attorney for a full evaluation and should be forthright throughout the entire process. Both the instant case and other Board precedent shows that an individual can be punished for a frivolous asylum application even where the application was mooted on other grounds.