Liu v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

YAN LIU, 
Petitioner, No. 08-72849
v.
 Agency No.
A077-309-486
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 10, 2010—Seattle, Washington

Filed February 23, 2011

Before: Raymond C. Fisher and Marsha S. Berzon,
Circuit Judges, and G. Murray Snow, District Judge.*

Opinion by Judge Fisher

*The Honorable G. Murray Snow, United States District Judge for the
District of Arizona, sitting by designation.

2789
2792 LIU v. HOLDER

COUNSEL

Frederick P.S. Whang, Seattle, Washington, for the petitioner.

Tony West, William C. Peachey and Jonathan Robbins
(argued), United States Department of Justice, Washington,
D.C., for the respondent.
 LIU v. HOLDER 2793
OPINION

FISHER, Circuit Judge:

This appeal concerns the distinction between an applicant
for asylum whose testimony lacks credibility and one who has
“deliberately fabricated” material aspects of her application,
and focuses on the heightened protections that condition the
latter finding. “[A]n asylum application is frivolous if any of
its material elements is deliberately fabricated.” 8 C.F.R.
§ 1208.20. If found to have “knowingly made a frivolous
application for asylum,” an applicant will be “permanently
ineligible for any benefits under [the Immigration and Nation-
ality Act],” including asylum relief. 8 U.S.C. § 1158(d)(6).
Given these harsh consequences, the distinctions between the
requirements for an adverse credibility determination and a
frivolousness finding are of critical importance.

In this case, we hold that substantial evidence supports the
Board of Immigration Appeals’ (BIA) denial of petitioner’s
asylum and withholding of removal claims based on petitioner
Yan Liu’s lack of credibility. However, whether Liu submit-
ted a frivolous asylum application is a distinct question
requiring a separate analysis. Although the grounds cited for
the adverse credibility determination overlap to some extent
with the grounds cited for the frivolousness finding, the
heightened requirements for the latter finding were not met.
Liu was not given an adequate opportunity to address all the
grounds for the frivolousness finding, and those she was able
to address are insufficient, standing alone, to support the friv-
olousness determination. Accordingly, we grant Liu’s petition
in part.

BACKGROUND

Liu is a native of China who arrived in the United States
on April 18, 2000. Her mother had arranged the trip with
smugglers. At Liu’s airport interview, she told the immigra-
2794 LIU v. HOLDER
tion officer she left China because there were no jobs, and the
wages were inadequate for her to support her parents. When
asked if she feared being sent back, she said she would be
arrested and beaten, and would not “be treated like a human
being.”

On April 25, Liu was interviewed by an asylum officer and,
for the first time, she mentioned the Falun Gong.1 She told the
officer she left China because, “I have no work in China and
I am involved with the Falun Gong,” and said if she returned,
she would be “captured and put in jail.” Asked why she did
not mention the Falun Gong at her airport interview, she said
she was tired, scared, confused and worried that she would be
sent back if she discussed it. The asylum officer found her to
be credible.2

In February 2001, after an asylum hearing at which Liu tes-
tified and introduced evidence, the IJ denied Liu’s applica-
tion. The IJ first ruled (erroneously) that Liu could not qualify
for asylum or withholding of removal because her member-
ship in Falun Gong fell within neither the “particular social
group” nor “political opinion” categories.3 The IJ further con-
cluded that Liu did not meet the requirements for relief under
the Convention Against Torture. The IJ alternatively denied
1
Falun Gong is a spiritual movement that blends Buddhist and Taoist
philosophies with meditation and martial arts exercises. See Zhang v. Ash-
croft, 388 F.3d 713, 715 (9th Cir. 2004) (per curiam).
2
This interview was transcribed and is part of the administrative record.
The officer provided Liu with an interpreter and gave her an opportunity
to clarify her answers at the conclusion of the interview. Accordingly, the
IJ and the BIA could use the interview transcript to impeach Liu’s credi-
bility even though the asylum officer did not testify at the hearing. See
Singh v. Gonzalez, 403 F.3d 1081, 1089 (9th Cir. 2005).
3
The BIA did not rely on this ground in affirming the IJ. By 2004, after
both the IJ’s decision and the first BIA decision, we clarified that persecu-
tion based on Falun Gong membership may meet the religious group and
political opinion grounds for asylum. See Zhang, 388 F.3d at 720-21; see
also Zhou v. Gonzales, 437 F.3d 860, 868-70 (9th Cir. 2006).
 LIU v. HOLDER 2795
Liu’s asylum and withholding of removal claims based on an
adverse credibility determination, citing several grounds for
her finding that Liu was not a credible witness.

First, the IJ noted a date discrepancy. Liu testified that her
uncle, with whom she lived, taught her about Falun Gong, and
initially said he was arrested for his Falun Gong practice in
the middle of August 1999. Later, however, she gave the date
of his arrest as September 3, 1999. Both dates conflicted with
a letter submitted by Liu, purportedly written by her uncle,
that stated that he was arrested on September 28, 1999. Liu
explained that his letter was generally reliable but that
“maybe he is kind of screwed up with the time.” The IJ was
not persuaded, and found the discrepancies undermined Liu’s
credibility.

Second, the IJ found that Liu’s failure to mention Falun
Gong during her initial airport interview called her credibility
into question. Liu explained that she did not fully understand
the translation, was “tired and fatigued” after her travels, and,
when she saw people being sent back, felt too scared to “an-
swer what [she] really want[ed] to say.” The IJ did not believe
Liu’s explanation, but instead concluded that she had made up
her involvement with Falun Gong after obtaining counsel.

Third, the IJ thought it suspicious that Liu’s uncle’s letter
mentioned practicing Falun Gong with a group in a park, but
did not specify that he had practiced there with Liu, as she
had testified. The IJ concluded that Liu’s explanation for the
omission — that she had secretly followed her uncle to the
park and hidden behind others so she could practice with his
group without his knowledge — was not credible. Finally, the
IJ concluded that Liu’s uncle’s letter appeared fabricated
because it stated that Falun Gong was outlawed in September
1999, whereas country reports state that it became illegal in
July 1999.
2796 LIU v. HOLDER
After making the adverse credibility determination, the IJ
“further ma[de] a finding that the applicant ha[d] filed a frivo-
lous asylum application.” The IJ’s decision specified four
grounds for the frivolousness finding, including the conflict-
ing dates of Liu’s uncle’s arrest she previously cited as a
ground for her adverse credibility determination.4 The three
other grounds were, however, distinct from those previously
discussed with regard to the IJ’s adverse credibility determi-
nation.

First, the IJ noted that the letter from Liu’s uncle said she
had gone into hiding in various places and did not dare go out
in public during the day, whereas Liu testified that she
worked part-time in those places. Second, although the letter
stated that police released Liu’s uncle with orders to turn his
niece in or face severe punishment, the IJ saw “no evidence
that he was punished severely as a consequence of his failure
to turn his niece in.” Third, the IJ found Liu’s testimony about
the time period during which she practiced Falun Gong to be
internally inconsistent. She noted that Liu told the asylum
officer she stopped practicing Falun Gong in June 1999, but
in the next sentence said she stopped practicing in the middle
of August 1999.

In 2003, the BIA affirmed the IJ’s decision “to the extent
that the Immigration Judge found that the respondent failed to
establish any basis for a valid claim under the Convention
Against Torture, that she gave testimony that was not credible
in support of her applications for relief from removal, and that
she filed a frivolous asylum application.” While Liu’s appeal
to this court was pending, the government submitted an unop-
posed motion to remand in light of the BIA’s decision in In
re Y-L-, 24 I. & N. Dec. 151 (B.I.A. 2007), which established
4
Although the IJ lists six grounds, the first and second discuss the dif-
ferent dates of Liu’s uncle’s arrest, and the fifth and sixth address the
chronology of her Falun Gong practice. Because of the overlap, items one
and two are discussed together, as are five and six.
 LIU v. HOLDER 2797
new procedural requirements for finding an asylum applica-
tion frivolous under 8 C.F.R. § 1208.20. We granted the
motion.

After we did so, the government asked the BIA to remand
to the IJ “because the record was stale and because the [IJ]
failed to make an explicit credibility finding.” The BIA
denied the motion, concluding that the IJ had made an explicit
credibility finding and that the record was sufficient. The
BIA’s 2003 adoption of the IJ’s adverse credibility finding,
therefore, remains the Board’s final decision on Liu’s credi-
bility.

The BIA also affirmed the IJ’s frivolousness finding after
concluding that the four procedural requirements set forth in
In re Y-L- had been satisfied. First, there was no dispute that
Liu was given proper notice at the outset of the hearing of the
consequences of filing a frivolous asylum application. Sec-
ond, the BIA found the IJ had separately analyzed and made
findings regarding deliberate fabrication. Third, the BIA dis-
cussed specific grounds it identified as supporting the frivo-
lousness finding by a preponderance of the evidence. The BIA
noted the absence of any reference to Falun Gong in Liu’s air-
port interview and concluded that her explanation that she
was afraid and confused was inadequate. It also cited the
inconsistent dates given for Liu’s uncle’s arrest and Liu’s
shifting account of the time frame during which she practiced
Falun Gong, concluding these inconsistencies supported a
finding of knowing fabrication. Finally, the BIA found that
Liu was given adequate opportunities to address these
grounds. The BIA thus affirmed its previous frivolousness
finding.

The present petition challenges both this finding and the
earlier denial of Liu’s asylum and withholding of removal
claims. We have jurisdiction under 8 U.S.C. § 1252(a)(1).
2798 LIU v. HOLDER
STANDARD OF REVIEW

“When the BIA conducts its own review of the evidence
and law rather than adopting the IJ’s decision, our review ‘is
limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.’ ” Shrestha v. Holder, 590 F.3d
1034, 1039 (9th Cir. 2010) (quoting Hosseini v. Gonzales,
471 F.3d 953, 957 (9th Cir. 2006)). Because Liu’s application
for relief was filed before May 11, 2005, pre-REAL ID Act
standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064
n.1 (9th Cir. 2005). We review credibility findings for sub-
stantial evidence. See Lopez-Reyes v. INS, 79 F.3d 908, 911
(9th Cir. 1996). Whether the IJ complied with the BIA’s four
procedural requirements for a frivolousness finding is a ques-
tion of law we review de novo. See Khadka v. Holder, 618
F.3d 996, 1002 (9th Cir. 2010).

DISCUSSION

Liu’s petition challenges the BIA’s denial of her asylum
and withholding of removal claims and its finding that she
filed a frivolous asylum application. We deny her petition as
to asylum and withholding of removal because the IJ’s
adverse credibility determination, as adopted by the BIA, was
supported by substantial evidence. We grant her petition as to
the frivolousness finding, however. Although the grounds for
the adverse credibility determination overlap with those the IJ
and BIA cited in support of the frivolousness finding, “a find-
ing of frivolousness does not flow automatically from an
adverse credibility determination.” Id. The heightened sub-
stantive and procedural requirements for a frivolousness find-
ing make that inquiry distinct, and we conclude those
heightened requirements were not met here. We reject Liu’s
final claim that the IJ violated her due process rights.

I. Credibility

[1] An asylum applicant bears the burden of establishing
her claim through credible evidence. See 8 U.S.C.
 LIU v. HOLDER 2799
§ 1158(b)(1)(B); Singh v. Ashcroft, 367 F.3d 1139, 1142 (9th
Cir. 2004). We need discuss only three of the IJ’s grounds for
her adverse credibility determination to conclude that Liu did
not meet her burden.

First, Liu’s failure to mention Falun Gong at her airport
interview undermines her credibility to some degree. In Li v.
Ashcroft, 378 F.3d 959, 962-63 (9th Cir. 2004), we expressed
a reluctance “to view statements given during airport inter-
views as valuable impeachment sources because of the condi-
tions under which they are taken and because a newly-
arriving alien cannot be expected to divulge every detail of
the persecution he or she sustained.” We nonetheless con-
cluded that substantial evidence supported the adverse credi-
bility finding, explaining that the petitioner had not “simply
failed to mention an instance of abuse or to provide as much
detail in his airport interview,” but instead had “affirmatively
denied any mistreatment by the Chinese Government . . . and
explained that he left China for financial reasons.” Id. at 963.

[2] We elaborated on Li in Yan Xia Zhu v. Mukasey, 537
F.3d 1034, 1041 (9th Cir. 2008), explaining that when an
arriving alien provides only a “vague outline” of an asylum
claim at an airport interview, the lack of detail cannot support
an adverse credibility determination. There, the petitioner said
in her airport interview that she was being “persecuted by
[her] boss.” Id. at 1040. She later requested asylum because,
she alleged, the police began harassing her after she reported
that her boss, a local factory owner and politician, had raped
her. Id. at 1036-37. We held that the petitioner’s failure to
provide more than a one-sentence summary of her asylum
claim at her airport interview was not inconsistent with her
“more detailed testimony at the hearing [before the IJ]” and
therefore could not support an adverse credibility determina-
tion. Id. at 1041.

[3] Here, Liu’s statements at her airport interview fall
somewhere between those in Li and Yan Xia Zhu. Liu did not
2800 LIU v. HOLDER
deny mistreatment in China, but she failed to mention Falun
Gong, the central element of her asylum claim. Furthermore,
Liu’s affirmative statement that her primary motivation for
leaving China was to find a better paying job is in significant
tension with her asylum claim, even if it does not directly
contradict it. Liu was given an opportunity to address this
incongruity at her hearing, consistent with the requirements
for adverse credibility determinations outlined in Soto-Olarte
v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009), but the IJ
reasonably found unsatisfactory her explanation that she
failed to mention the persecution she had experienced because
she was “tired.” Although Liu’s statements at her airport
interview taken alone might not suffice to support the IJ’s
adverse credibility finding, they do so when taken together
with other discrepancies in Liu’s testimony.

Second, the IJ found outlandish Liu’s attempt to explain
why her uncle’s letter did not mention that she practiced
Falun Gong with him in the park. Liu’s explanation that she
had surreptitiously followed him there and performed behind
other practitioners without his knowledge does not contradict
the uncle’s letter — he merely said he practiced in the park
with others and did not mention Liu. Nonetheless, given the
improbable nature of Liu’s story, the IJ permissibly concluded
that it undermined Liu’s credibility.

Finally, the IJ noted inconsistencies in Liu’s testimony
regarding when her uncle was arrested for his Falun Gong
practice. Liu initially testified that his arrest took place in
August 1999, but quickly changed her testimony, saying it
actually occurred in September. She then repeatedly insisted
that he was arrested on September 3, testifying that she
remembered the date very clearly. The letter from her uncle,
however, stated that he was arrested on September 28, 1999.
When she was questioned about this discrepancy, Liu offered
that her uncle, who wrote in his letter that he was 56 years
old, must be “too old” to remember the date of his own arrest.
The IJ found this rationale inadequate and concluded that the
 LIU v. HOLDER 2801
differing dates and unsatisfactory explanation further under-
mined Liu’s credibility.

[4] We hold that, taken together, Liu’s statements at her
airport interview, her improbable explanation for the omission
in her uncle’s letter and her shifting account of her uncle’s
arrest constitute sufficient evidence to support the IJ’s adverse
credibility determination. Although Liu was not given an ade-
quate opportunity to address some of the IJ’s other grounds
for questioning her claims, as will be discussed below, she did
have an adequate opportunity to address these three grounds,
and together they are sufficient to sustain the adverse credibil-
ity determination. See id. Accordingly, we deny Liu’s petition
as to her asylum claim.5

II. Frivolous Application

We turn next to the BIA’s finding that Liu knowingly filed
a frivolous asylum application rendering her “permanently
ineligible for any benefits under [the Immigration and Nation-
ality Act].” 8 U.S.C. § 1158(d)(6). Just as the consequences
of a frivolousness finding are more severe than those of an
adverse credibility determination, the substantive and proce-
dural requirements for a frivolousness finding are more strin-
gent as well. We conclude that these heightened requirements
were not met here. For most of the grounds cited in support
of the frivolousness finding, Liu had inadequate notice of that
intended finding, and therefore did not have the requisite
opportunity to explain the perceived discrepancies. The two
grounds Liu did have some opportunity to address are insuffi-
cient to support the frivolousness finding.
5
Because Liu failed to meet her burden of establishing eligibility for
asylum, she necessarily failed to satisfy the higher standard for withhold-
ing of removal. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004).
We also deny the petition for review as to relief under the Convention
Against Torture, because Liu did not challenge the BIA’s conclusion on
this issue in her brief. See Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th
Cir. 2004).
2802 LIU v. HOLDER
A. Heightened Substantive and Procedural
Requirements

[5] As we recently explained in Khadka, a frivolousness
finding differs from an adverse credibility determination in at
least four essential substantive respects. First, an asylum
application may be deemed frivolous only if it contains “de-
liberate[ ] fabricat[ion],” 8 C.F.R. § 1208.20, and the appli-
cant has thus perpetrated a fraud on the court. See In re
Y-L-, 24 I. & N. Dec. at 155 n.1 (explaining that “the term
‘fraudulent’ may be more appropriate than the term ‘frivo-
lous’ when applied to a questionable asylum application”).
Accordingly, there is a heightened scienter requirement — the
conduct giving rise to a frivolousness finding must be much
more serious than the “omission, inconsistency, or discrepan-
cy” that may support an adverse credibility determination. See
Khadka, 618 F.3d at 1002.

[6] Second, a frivolousness determination requires a find-
ing that a “material element” of the claim was fabricated,
whereas an adverse credibility determination may be sup-
ported by an inconsistency or apparent falsehood that merely
relates to a material element of the claim. Id. (emphasis added).6
Third, although the “applicant for relief from removal has the
burden of demonstrating that he or she meets all of the
requirements” for such relief, the burden shifts to the govern-
ment to prove the applicant has filed a frivolous application.
In re Y-L-, 24 I. & N. Dec. at 157. Fourth, a frivolousness
finding requires a stronger evidentiary showing than an
adverse credibility finding: frivolousness must be proven by
a preponderance of the evidence, whereas an adverse credibil-
ity finding must be supported only by substantial evidence.
See Khadka, 618 F.3d at 1002 & n.5.
6
The REAL ID Act’s elimination of the requirement that inconsistencies
supporting an adverse credibility determination must “go to the heart of”
the claim does not apply here because Liu filed her asylum application
before May 11, 2005. See Cortez-Pineda v. Holder, 610 F.3d 1118, 1124
n.7 (9th Cir. 2010).
 LIU v. HOLDER 2803
In addition to these heightened substantive requirements,
the BIA in In re Y-L- set forth four procedural requirements
for a frivolousness finding:

(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 know-
ingly filed a frivolous application; (3) sufficient evi-
dence 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.

24 I. & N. Dec. at 155. We adopted the BIA’s analytical
framework for our own review in Ahir v. Mukasey, 527 F.3d
912, 917 (9th Cir. 2008).

Liu does not dispute that the first procedural requirement
(notice) was satisfied. She does argue that the IJ failed to
make a specific finding of frivolousness, the second require-
ment. Liu apparently misunderstands this requirement. She
cites pages from the hearing transcript as evidence that the IJ
did not make specific findings, but ignores the six numbered
grounds in the IJ’s decision, under the heading “Finding of
Frivolous Claim.” These specific grounds satisfy the second
requirement. See id. at 918.

We do not address at this point the third requirement that
there be sufficient supporting evidence because, looking
ahead to the fourth requirement, we conclude Liu was not
given sufficient notice and opportunity to explain most of the
grounds invoked for the frivolousness finding. Absent those
grounds, the two Liu did have some opportunity to address —
the conflicting testimony regarding the date of her uncle’s
arrest and her failure to mention Falun Gong at the airport
interview — are not alone sufficient evidence that Liu delib-
2804 LIU v. HOLDER
erately fabricated a material element of her asylum applica-
tion. We therefore turn to why the fourth requirement was not
satisfied here.

B. Insufficient Opportunity to Account for
Discrepancies

[7] “[D]uring the course of the proceedings, [an applicant
must] ha[ve] had sufficient opportunity to account for any dis-
crepancies or implausible aspects of the claim” before they
can be used by the IJ as grounds for a finding of frivolous-
ness. 8 C.F.R. § 1208.20; see also In re Y-L-, 24 I. & N. Dec.
at 155. To meet this requirement, it must be made apparent to
the applicant that a particular discrepancy or implausibility is
considered potentially fraudulent, rather than merely a basis
for finding the applicant not credible. As the BIA admonished
in In re Y-L-, it is “good practice for an Immigration Judge
who believes that an applicant may have submitted a frivolous
asylum application to bring this concern to the attention of the
applicant prior to the conclusion of proceedings.” 24 I. & N.
Dec. at 159-60; see also Farah v. Ashcroft, 348 F.3d 1153,
1158 (9th Cir. 2003) (remanding to the BIA because the
applicant did not have the opportunity to address the particu-
lar grounds relied on by the IJ in making a frivolousness find-
ing) (cited by the BIA in Liu’s case).

[8] Recently, in In re B-Y-, 25 I. & N. Dec. 236 (B.I.A.
2010), the BIA elaborated on the In re Y-L- standard. It clari-
fied that, although its “good practice” suggestion was “not
meant to add a blanket requirement,” “the opportunity for
explanation requires that an Immigration Judge not rely on
inconsistencies that take [an applicant] by surprise.” Id. at
242. Accordingly, “[w]hen the required frivolousness warn-
ings have been given to the [applicant] prior to the start of a
merits hearing, the Immigration Judge is not required to
afford additional warnings or seek further explanation in
regard to inconsistencies that have become obvious to the
[applicant] during the course of the hearing.” Id. (emphasis
 LIU v. HOLDER 2805
added). In Liu’s case, however, three of the four grounds the
IJ specified in support of the frivolousness finding were not
“obvious or glaring.” Id. Accordingly, it should have been
“brought to the attention of the [applicant] during the course
of the hearing” that they were being considered as evidence
of fraud so Liu would have an opportunity to explain them in
that light. Id. The record reflects this did not happen.

[9] The three grounds Liu did not have sufficient notice
and opportunity to explain were the following: First, the IJ
found a conflict between Liu’s uncle’s letter’s statement that
she went into hiding after his arrest, and Liu’s statement that
she worked at part-time jobs as she moved from town to town.
Second, the IJ noted that the Chinese government apparently
failed to punish Liu’s uncle for not turning Liu in after he was
released with orders to do so, despite threats of severe punish-
ment mentioned in his letter. Third, the IJ noted that Liu gave
internally inconsistent testimony regarding the time period
during which she practiced Falun Gong. Had Liu been aware
the IJ perceived these issues to be evidence of intentional
fraud, Liu might have been able to disabuse the IJ of her
belief that Liu intended to perpetrate a fraud rather than sim-
ply failed to articulate a persuasive or even credible explana-
tion of the inconsistencies.

[10] The BIA, however, found the IJ’s announcement at
the end of the hearing that she intended to make a frivolous-
ness finding sufficient to satisfy In re Y-L-’s fourth require-
ment. The IJ advised Liu, “I am going to make a
frivolous[ness] finding,” and then added:

Counsel, if you wish to make a resolution with the
INS and the INS wishes to try to dispose of this case
without a frivolous[ness] finding or wishes — if
your client wishes to do that, I may reconsider the
[finding] before I issue the final ruling . . . . Do you
wish to make — to have a discussion with the INS
. . . or your client?
2806 LIU v. HOLDER
Giving Liu an opportunity to negotiate a settlement with the
government to avoid the frivolousness finding is not the same
as giving her a chance to address the IJ’s specific grounds for
finding her to have “deliberately fabricated” material aspects
of her claim.

[11] Ahir illustrates the distinction. There the IJ “first pro-
vided Ahir with a lengthy and detailed explanation of the dis-
crepancies at issue and asked her to explain. When she proved
unable to do so, [the IJ] asked her directly, ‘[d]id you present
to me a false claim for asylum, a made-up claim?’ ” Ahir, 527
F.3d at 919. Accord Ceraj v. Mukasey, 511 F.3d 583, 590-91
(6th Cir. 2007) (holding that the applicant had the requisite
opportunity to respond after the IJ announced an intention to
make a frivolousness finding and advised, “Now is your one
and only opportunity, sir, to explain to me why those were not
blatant falsehoods. . . . [I]f you’ve lied to me, now’s your time
to fess up.”). Liu was not directly confronted in a comparable
manner or otherwise given “sufficient opportunity to account
for” the grounds the IJ and BIA identified for the frivolous-
ness finding. 8 C.F.R. § 1208.20; see In re Y-L-, 24 I. & N.
Dec. at 155. Contrary to the BIA’s ruling, the IJ’s end-of-
hearing declaration of her intent to make a frivolousness find-
ing was not “a full opportunity to offer further explanation for
the inconsistencies in the record.”

In support of its ruling, the BIA also cited the IJ’s fourth
ground for the frivolousness finding — the discrepancy
between the dates of Liu’s uncle’s arrest. As discussed previ-
ously, Liu did have some opportunity to explain this discrep-
ancy, and we have agreed the IJ was justified in finding her
explanation not credible. But an opportunity to explain that is
sufficient to support an adverse credibility determination does
not necessarily support a frivolousness finding. Here, Liu’s
explanation of the date discrepancy suggests she understood
the IJ might have been questioning the credibility of her testi-
mony, but not that she realized the IJ believed she was pre-
senting a deliberately false claim to the court meriting a
 LIU v. HOLDER 2807
frivolousness finding. Liu might have been improvising in her
varying recollections of the dates, and in suggesting that her
uncle might have “screwed up” his arrest date in his letter. If
the IJ thought Liu was outright lying in an effort to put for-
ward a fraudulent asylum claim, the IJ needed to do more to
make that clear to Liu so she could try to dispel that impres-
sion.

[12] Given the harsh consequences that follow from a friv-
olousness finding, the line between adverse credibility and
fraud must be carefully maintained. The requirement that an
applicant be given an opportunity to respond directly to a pro-
posed frivolousness finding assists in doing so. An applicant
whose testimony creates incongruities she cannot resolve
might nonetheless persuade the IJ that the shortcomings in her
claim do not warrant the more extreme finding of premedi-
tated fraud. Cf. Khadka, 618 F.3d at 1004 (“Given proper
warning, an asylum applicant may be able to rebut an allega-
tion that he filed a frivolous asylum application without actu-
ally convincing a finder of fact that he had not presented
fabricated evidence.”). Without knowing how an applicant
responds to this more focused inquiry, we cannot properly
determine whether that higher threshold has been crossed.
That is the situation we find here. Thus the grounds the IJ and
BIA invoked to support the frivolousness finding that Liu did
not have proper opportunity to explain must be disregarded.

C. Insufficient Evidence That a Material Element of
the Asylum Application Was Deliberately Fabricated

Even if we assume Liu’s opportunity to address the con-
flicting dates of her uncle’s arrest sufficed for frivolousness
purposes, the date discrepancy by itself is insufficient evi-
dence of fraud under In re Y-L-’s third requirement. Although
the discrepancy supports the IJ’s adverse credibility determi-
nation, and thus the IJ’s conclusion that Liu failed to carry her
burden of demonstrating eligibility for asylum relief, the bur-
den shifts to the government to prove that Liu filed a frivolous
2808 LIU v. HOLDER
application. See In re Y-L-, 24 I. & N. Dec. at 157. The date
discrepancy is insufficient to meet that burden, particularly
given the higher, preponderance of the evidence standard
required to support a frivolousness finding. See Khadka, 618
F.3d at 1002.

As an initial matter, as the IJ herself repeatedly acknowl-
edged, any fabrication could have been the work of Liu’s
uncle rather than Liu. That would not meet the requirement
that “the applicant deliberately fabricated” the information,
nor would it satisfy the heightened scienter requirement for
frivolousness determinations. See id. Moreover, although the
date of Liu’s uncle’s arrest was “relat[ed] to a material ele-
ment” of her application, and could thus be used to support
the adverse credibility finding, the arrest date is not itself a
material element of the claim, as is required for a frivolous-
ness finding. See id. Accordingly, the discrepancy regarding
the arrest date does not alone constitute sufficient evidence to
carry the government’s burden of proving frivolousness.

The BIA also cited Liu’s failure to mention Falun Gong at
her airport interview as a factor supporting the finding of friv-
olousness. Liu had some opportunity to address this issue, but
as we have explained, even when coupled with other inconsis-
tences this omission was at best barely sufficient to support
the IJ’s adverse credibility finding. Accordingly, it alone can-
not meet the heightened requirements for a frivolousness find-
ing.

[13] In sum, because Liu was not given a proper opportu-
nity to address most of the grounds cited for the frivolousness
finding, and because the grounds she did have some opportu-
nity to address do not, without the others, amount to sufficient
evidence of frivolousness, we grant Liu’s petition and vacate
the BIA’s finding that she submitted a frivolous application
for asylum.
 LIU v. HOLDER 2809
III. Due Process

[14] Finally, we briefly address Liu’s separate due process
claim. Liu argues that the IJ violated her due process rights by
prejudging the merits of her claim and by assuming a prosecu-
torial role. See Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.
2000) (“Due process requires that an alien receive a full and
fair hearing.”). We review due process claims de novo. See id.
As to the first argument, the IJ initially expressed skepticism
that membership in Falun Gong could support an asylum
claim. The IJ thus suggested that Liu focus on threats actually
directed at her because further testimony about her practice of
Falun Gong would be irrelevant. At the second hearing, how-
ever, the IJ decided to reopen testimony on this point to allow
Liu to give her full account of her Falun Gong involvement.
Thus, even assuming the IJ’s initial actions were improper,
we conclude that Liu did not suffer the requisite prejudice to
establish a due process violation. See id. at 728 (“Prejudice
occurs when the rights of the alien have been transgressed in
such a way as is likely to impact the results of the proceed-
ings.”).

[15] As to Liu’s second argument, we have reviewed the
record and found no evidence that the IJ improperly assumed
a prosecutorial role. In actively questioning Liu to determine
whether inconsistencies could be resolved, the IJ did not show
a “predisposition to discredit” Liu’s testimony that would
cause us to question the IJ’s impartiality. Garrovillas v. INS,
156 F.3d 1010, 1015 (9th Cir. 1998). Again, Liu’s due pro-
cess rights were not violated.

CONCLUSION

We hold that substantial evidence supports the IJ’s adverse
credibility determination, adopted by the BIA, and thus deny
Liu’s petition as to her asylum and withholding of removal
claims. We grant Liu’s petition as to the frivolousness find-
ing, vacate that finding and remand to the BIA for further pro-
2810 LIU v. HOLDER
ceedings consistent with this opinion. The parties shall bear
their own costs on appeal.

GRANTED in part; DENIED in part; and
REMANDED.