FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO MIN CHEN,
Petitioner, No. 04-72413
v.
Agency No.
A75-642-340
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 12, 2008—Pasadena, California
Filed June 3, 2008
Before: Stephen S. Trott, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Trott;
Concurrence by Judge Clifton
6243
CHEN v. MUKASEY 6245
COUNSEL
Howard Hom, Los Angeles, California, for the petitioner.
John M. McAdams and Paul Fiorino, United States Depart-
ment of Justice, Washington, DC, for the respondent.
OPINION
TROTT, Circuit Judge:
Xiao Min Chen, a native and citizen of China, seeks review
of the Board of Immigration Appeal’s (“BIA”) decision
affirming the immigration judge’s (“IJ”) decision declaring
Chen’s asylum application frivolous. At a hearing in April of
6246 CHEN v. MUKASEY
2002, Chen admitted that the contents of her asylum applica-
tion were false, that the information she provided to an asy-
lum officer in an April 1999 interview was false, and that the
marriage and birth certificates she provided to the asylum
officer were false. Consequently, the IJ found that, pursuant
to 8 U.S.C. § 1158(d)(6), Chen had knowingly filed a frivo-
lous application for asylum. Because a finding of frivolous-
ness makes an alien permanently ineligible for benefits under
the Immigration and Nationality Act (“INA”), the IJ denied
both Chen’s application for waiver of inadmissibility and her
application for adjustment of status based on her marriage to
a United States citizen.
Chen argues that because she withdrew the application
prior to testifying in support of it and prior to a final determi-
nation on the application, the IJ erred. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(2)(D), and in light of a recent
decision in the Second Circuit, we grant the petition and
remand to the BIA to determine in the first instance the proper
interpretation of 8 U.S.C. § 1158(d)(6).
I
BACKGROUND
Chen entered the United States in 1998 on a non-immigrant
P-3 visa to work as a folk dancer, but, after entering the
United States, Chen never performed such work. The visa
authorized her to remain in the United States until no later
than April 26, 1999. When she stayed beyond that date, she
was charged with and conceded removability.
In March of 1999, Chen presented an application for asy-
lum, which we now know was rife with fraud. The signature
page on the I-589 filed by Chen contains the following warn-
ing in bold font:
Applicants in the United States illegally are subject
to removal if their asylum or withholding claims are
CHEN v. MUKASEY 6247
not granted by an asylum officer or an immigration
judge. Any information provided in completing this
application may be used as a basis for the institution
of, or as evidence in, removal proceedings, even if
the application is later withdrawn. Applicants deter-
mined to have knowingly made a frivolous applica-
tion for asylum will be permanently ineligible for
any benefits under the [INA].
(emphasis added). Additionally, the Notice of Privilege of
Counsel and Consequences of Knowingly Filing a Frivolous
Application for Asylum, served on Chen’s attorney on August
31, 1999, contained the following warning: “If you knowingly
file a frivolous application for asylum YOU WILL BE
BARRED FOREVER from receiving any benefits under the
[INA].”
In her application, Chen claimed that she was married in
China to a man named Hua Zhou and had two children. She
said that when she became pregnant with her second child,
she and her husband feared that they would be punished by
the Chinese government. In spite of this fear, the couple was
determined to have the child.
According to her application, when Chen was nearly four
months pregnant, the factory where she worked conducted a
routine health checkup, and her pregnancy was discovered.
Chen was ordered to the factory’s office, and a hospital was
contacted to perform an abortion. Chen claimed that the peo-
ple at the factory “began to plot and force me to the hospital.
I struggled with all my might. However I was finally forced
to get into the factory’s van because I was afraid of injury to
the fetus.”
When Chen got to the hospital, she felt nearly hopeless and
“even thought of death.” She refused to sign the required doc-
umentation until the staff agreed to let her call her husband to
come to the hospital. While she was supposed to be making
6248 CHEN v. MUKASEY
the phone call, she ran outside and escaped in a taxi. After her
escape, Chen claimed she could not go home because people
from the factory went to both her house and her parent’s
house daily trying to find her. She stayed with relatives until
the baby was born in May of 1998. In July of 1998, two
months after the alleged birth of her second child, Chen came
to the U.S. to escape the “nightmare” of her life in China.
In May of 1999, during a hearing, Chen was advised by an
IJ that if she knowingly filed a frivolous application for asy-
lum, she would be permanently barred from receiving immi-
gration benefits. The IJ informed Chen that a “frivolous
application for asylum is one which contains statements or
responses to questions that are deliberately fabricated or made
up.” After Chen acknowledged that she understood the warn-
ing, the IJ said:
Understanding that ma’am, do you still wish me to
consider this application in deciding your request for
asylum? Ma’am you should answer on your own
because if this is a bad application that has frivolous
information in it, you are the one whose [sic] barred
forever, not this attorney. And I see you looking at
him and he is giving you clues on how to answer by
shaking his head. So you can do what he tells you by
his head shakes but you’re the one that’s bound by
it, ma’am. So take your answer very seriously
because I’m not going to say later, Oh, that poor
lady, she only said she wanted me to consider this
document cause her attorney said to. I’m going to
say, That lady told me to consider it and if it’s frivo-
lous ma’am, that’s it on the benefits. No asylum, no
withholding,1 no Convention Against Torture, noth-
ing. Do you understand?
1
We note that the IJ was incorrect in stating that a frivolousness finding
bars a petitioner from seeking withholding of removal. See 8 C.F.R.
§ 1208.20.
CHEN v. MUKASEY 6249
After being permitted time to go off the record and discuss the
matter with her attorney, Chen told the IJ that she wished him
to consider the application in deciding her request for asylum.
Chen’s attorney told the IJ “we’d like to have time to file
some supplemental materials, maybe . . . and also maybe an
affidavit.” The IJ accepted Chen’s application for filing and
consideration and continued the removal hearing until
November 15, 1999.
In November of 1999, Chen appeared before an IJ with
new counsel. Her attorney informed the IJ that “we wish to
perhaps do a withdrawal of the asylum and do an adjustment
of status [based on Chen’s marriage to Ping Yang, a U.S. citi-
zen].” Counsel requested a continuance until January of 2000
to review the record, prepare, and file the adjustments. Chen’s
attorney told the IJ that, as of November 1999, Chen’s hus-
band had not yet filed an I-130 petition requesting a visa for
Chen. He had also not filed an I-485 application for adjust-
ment of status for Chen.
In January of 2000, Chen returned to court and told the IJ
that her husband had filed an I-130 and an I-485 on her
behalf. A status discussion of the I-130 was set for November
of 2000, and the IJ requested Chen inform the court should
the I-130 be approved prior to that date. In November of
2000, May of 2001, and November of 2001, Chen’s counsel
told the IJ that the I-130 had not yet been approved. The
Immigration and Naturalization Service (“INS”)2 finally
granted the I-130 petition in February of 2002.
On April 25, 2002, Chen and her attorney appeared before
an IJ for a continued removal proceeding. During that pro-
ceeding, the following dialogue occurred:
2
The INS was abolished on March 1, 2003, and its functions were trans-
ferred to the Department of Homeland Security. See Homeland Security
Act of 2002, Pub.L. No. 107-296, § 471, 116 Stat. 2135, 2205.
6250 CHEN v. MUKASEY
Judge to Ms. Calillo [Chen’s counsel]
Q: And, counsel, off the record you indicated to
me that you have reviewed the tapes. I was not the
Judge starting this case and your understanding is
this [application] has been previously withdrawn, but
to be abundantly cautious in this case, are you going
to withdraw the application?
A. Yes, Your honor.
...
Judge to Ms. Fontova [government counsel]
Q. Ms. Fontova, you indicated your file, as well as
my file, does not indicate that there has been a with-
drawal. Is that correct?
A. The notes didn’t indicate such, Your honor.
...
Judge to Ms. Calillo
Q. So as of today, I’m showing, Ms. Calillo, that
the asylum application has been withdrawn as indi-
cated, that’s what you are requesting.
...
Ms. Calillo to Judge
...
Q. If you’d like a date on when it was withdrawn,
it was November 15th.
CHEN v. MUKASEY 6251
A. That’s fine. No problem.
...
A. I’ve shown it’s withdrawn. I believe you, it’s
just for clarification purposes so that Ms. Fontova’s
and my file, as far as the record, or [sic] paperwork
will be clear.
In that same hearing, Chen testified that the contents of her
asylum application were false, and that the information she
provided to an asylum officer in an interview in April of 1999
was false. She further admitted that the marriage and birth
certificates she provided to the asylum officer were false, and
that she knew they were false when she provided them. Chen
was not married in China, nor did she have any children in
China. Chen confessed that she was actually married to Ping
Yang, whom she met after entering the United States. The
couple was married in the United States in October of 1999.
Chen has no children. She testified also that the information
in her application indicating that she feared the Chinese gov-
ernment’s birth control policy was false.
The IJ questioned Chen:
Q. Well, ma’am, how am I going to believe you
today that you’re married to this gentleman not for
getting an immigration benefit when you have lied,
in my opinion, to get your visa as a performer, and
you have lied to the asylum officer in Anaheim to
get asylum, it looks like you’ve lied to stay here on
a number of occasions. How do I know that you
didn’t marry this guy just to get a green card because
he is a citizen?
A. I’m sorry I did that because when I was first in
the United States, I had no idea what I should do and
6252 CHEN v. MUKASEY
those people told me it was what I should do in order
to remain here. They made up all the stories for me
and wanted me to provide a name, any name in
China so that they can make up a story for me. They
asked me to memorize all the details in the statement
in order to tell them the story during the interview.
Although somewhat confusing, additional testimony
appears to indicate that during both Chen’s first I-130 inter-
view in March of 2000, and her second I-130 interview in
February of 2002, she told the truth: that she had not been
married in China and that she had no children. As a result, an
overseas investigation into her marital status was instigated
and subsequently confirmed that Chen had never been mar-
ried in China and had no children.
At the conclusion of the April 2002 hearing, the IJ indi-
cated that she believed Chen’s current marriage was out of
love, and asked counsel to brief the issues of whether Chen
submitted a frivolous application and whether she was eligible
for waiver under 8 U.S.C. § 1182(i). Under 8 U.S.C.
§ 1182(a)(6)(C)(i), “[a]ny alien who, by fraud or willfully
misrepresenting a material fact, seeks to procure (or has
sought to procure or has procured) a visa, other documenta-
tion, or admission into the United States or other benefit pro-
vided under this chapter is inadmissible.” An alien may seek
waiver of this provision pursuant to 8 U.S.C. § 1182(i), and
in October of 2002, Chen filed an I-601, seeking such a
waiver.
On February 23, 2003, the IJ entered her oral decision and
order. The IJ, after reviewing the tapes, specifically found that
Chen did not withdraw her application for asylum on Novem-
ber 15, 1999. She further concluded that although the misrep-
resentation to obtain a visa could be waived, the filing of a
fraudulent asylum application could not. The IJ found that
Chen knowingly filed a false application for asylum, and that
Chen had notice of the consequences of filing a frivolous
CHEN v. MUKASEY 6253
application. Subsequently, the IJ denied Chen’s application
for waiver of inadmissibility pursuant to 8 U.S.C. § 1182(i).
She denied also her application for adjustment of status. The
IJ stated that “a later recantation of a story which is the basis
of an asylum application does not waive the fact that a frivo-
lous application was filed.” The BIA affirmed without opin-
ion.
II
STANDARD OF REVIEW
We review de novo an agency’s application of a statute.
Cervantes-Gonzales v. INS, 244 F.3d 1001, 1004 (9th Cir.
2001). We apply Chevron deference and uphold permissible
interpretations of the statute by the agency. See INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999).
III
DISCUSSION
[1] The frivolous asylum application statute, 8 U.S.C.
§ 1158(d)(6), 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), the alien shall be permanently ineligible for
any benefits under this chapter, effective as of the
date of a final determination on such application.
This provision applies “only if a final order by an [IJ] or the
[BIA] specifically finds that the alien knowingly filed a frivo-
lous asylum application.” 8 C.F.R. § 1208.20. An application
is frivolous “if any of its material elements is deliberately fab-
ricated.” Id. The notice required under 8 U.S.C.
§ 1158(d)(4)(A) is: “At the time of filing an application for
6254 CHEN v. MUKASEY
asylum, the Attorney General shall . . . advise the alien of the
privilege of being represented by counsel and of the conse-
quences, under paragraph (6), of knowingly filing a frivolous
application for asylum.”
Chen raises a novel issue to this Court: Whether the with-
drawal of an application after it is filed but before a final
order is entered by an IJ renders irrelevant a subsequent find-
ing by an IJ that the application was frivolous. Our answer to
this question is in the negative.
We believe that the I-589’s warning about the penalty for
making a false statement, the I-589’s warning about the pen-
alty for making a frivolous application,3 and the notice of con-
sequences of knowingly filing a frivolous application that
must be issued to a petitioner by an IJ pursuant to 8 U.S.C.
§ 1158(d)(4), all support the conclusion that the underlying
purpose of the frivolousness statute is to prevent petitioners
from lying to the United States government in order to obtain
benefits under the INA. Chen received both of the written
warnings. In addition to the written warnings, Chen received
a lengthy warning from the IJ, and yet, in the face of all of
these admonishments, she asked the IJ to consider her appli-
cation for asylum.
In addition to the numerous warnings provided to petition-
ers, the language of 8 U.S.C. § 1158(d)(6) and its implement-
ing regulation support our belief that withdrawing an
application does not bar an IJ from making a frivolousness
determination. The statute requires that the alien “knowingly
made a frivolous application for asylum.” (emphasis added).
3
We note that the signature page on the 2007 version of the I-589 con-
tains the warnings given to Chen and adds, “You may not avoid a frivo-
lous finding simply because someone advised you to provide false
information in your asylum application.” I-589, Application for Asylum
and Withholding of Removal (2007), available at http://www.uscis.gov/
portal/site/uscis (follow “Immigration Forms” hyperlink; then follow “Ap-
plication for Asylum and Withholding of Removal” hyperlink).
CHEN v. MUKASEY 6255
Furthermore, 8 C.F.R. § 1208.20, the regulation governing the
determination as to whether an asylum application is frivo-
lous, provides: “For applications filed on or after April 1,
1997, an applicant is subject to the provisions of [8 U.S.C.
§ 1158(d)(6)] 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.”
(emphasis added). The BIA recently observed that the Attor-
ney General stated that the purpose of this regulation was to
“carry[ ] out one of the central principles of the asylum
reform process begun in 1993; to discourage applicants from
making patently false claims.” In re Y-L-, 24 I. & N. Dec.
151, 154 (BIA 2007) (citation and quotation marks omitted).
Chen argues, we believe incorrectly, that the comments to
8 C.F.R. § 1208.20 support her argument that a petitioner
“should not be punished” for withdrawing a false application.
The applicable comments in the Federal Register state:
A commenter also suggested that an applicant should
not be punished for voluntarily withdrawing an asy-
lum application, and that the Department should
advise adjudicators that, before finding that an indi-
vidual filed a frivolous application, they should con-
sider the fact that an applicant may not have been
able to afford to retain counsel for advice on the
legal strength of an asylum claim. The current regu-
lation does not contain any provisions that punish an
applicant for withdrawing an asylum application.
Any applicant may choose to withdraw an applica-
tion at any time prior to a final decision; however, a
withdrawal does not preclude the Service from seek-
ing removal of the alien if he or she is deportable or
removable. The fact that an applicant may not have
hired legal counsel may be one factor, among others,
that an immigration judge or the Board may consider
when determining whether an applicant had suffi-
6256 CHEN v. MUKASEY
cient opportunity to account for any discrepancies or
implausible aspects of the claim.
65 Fed. Reg. 76,121, 76,128 (Dec. 6, 2000). We do not
believe that this language supports Chen’s position. We agree
with the government’s argument that Chen is not being pun-
ished for withdrawing her application. The “punishment” is
not for withdrawing the application several years after filing
it, rather it is for making the frivolous application in the first
place and lying to an asylum officer after being warned of the
consequences. Chen received notice of the consequences of
filing a frivolous application and chose to file and pursue the
application in spite of the warnings.
We next consider the recent decisions of two of our sister
circuits addressing the effect of withdrawal of an asylum
application prior to a frivolousness finding. The Sixth Circuit,
in Lazar v. Gonzales, 500 F.3d 469 (6th Cir. 2007), held that
a petitioner’s
withdrawal of his asylum application did not obviate
the need for the IJ to determine whether his false
application should be deemed frivolous. Contrary to
[petitioner’s] contention, the IJ’s frivolousness find-
ing was not mooted by the withdrawal of his applica-
tion. Indeed, if that were the law, every petitioner
seeking relief under the INA would have an incen-
tive to lie in their submissions because there would
be no penalties for doing so.
Id. at 476-77.
In Lazar, the petitioner filed two applications for asylum.
Id. at 472. In the first, he claimed persecution in Iraq on
account of his political activities. He repeated this claim in his
second application after he obtained new counsel. Id. Prior to
his asylum hearing, he sought a continuance pending the out-
come of his I-130 application for a visa based on his marriage
CHEN v. MUKASEY 6257
to a naturalized U.S. citizen. Id. The asylum hearing, how-
ever, was not continued at that time, and the IJ proceeded to
explain the consequences of filing a frivolous application to
the petitioner. Id. After receiving the warnings, the petitioner
affirmed that the contents of his application were “entirely
accurate” and declined to make any changes to the applica-
tion. Id. at 473. During the hearing, in response to questions
and documents submitted by the government, the petitioner’s
admissions showed he had been untruthful in his second
application as well as in his testimony. Id.
The IJ continued the hearing for nearly a year to consider
whether or not the petitioner had submitted a frivolous appli-
cation. Id. The petitioner withdrew his application for asylum
prior to the continued hearing, requesting instead adjustment
of status based on his marriage to a U.S. citizen. Id. at 473-74.
At the continued hearing, the IJ acknowledged the petitioner’s
withdrawal, but held nevertheless that the petitioner had filed
a frivolous application and was therefore not eligible for
adjustment of status. Id. at 474. The IJ held that “a prompt
recantation by an asylum applicant does not prevent a court
from deeming an asylum application frivolous.” Id. The IJ
reasoned:
There needs to be a general deterrent to all potential
asylum applicants that they cannot lie to the Court or
to the Immigration Service or there would be serious
consequences. It also is a specific deterrent in each
case before the Court or the Service, and that is to
preclude this particular person from lying. Once the
lie is done, he shot himself in the foot. And the fact
that he then confesses the error of his way is of little
and no import to the Court. Public policy dictates
that recantation not be a viable option. But even if it
were a viable option, the Court notes that the respon-
dent did not recant his application. The respondent
got caught with his hand in the cookie jar. What he
did not know is the Government had evidence that
6258 CHEN v. MUKASEY
would demonstrate that his application was fake,
phony and fraudulent. This, of course, would be an
involuntary recantation, and the Court cannot see
why any involuntary recantation, if you want to call
it that, would preclude a finding of frivolousness. It
would make a mockery of this system. But in any
event, the respondent did not recant, he just con-
fessed and it was a forced confession at that.
Id. at 474. The Sixth Circuit agreed with the IJ. Id. at 476-77.
In Zheng v. Mukasey, 514 F.3d 176 (2d Cir. 2008), how-
ever, the Second Circuit took a different approach than the
Sixth, remanding to the BIA to interpret what it believed is
ambiguous language in 8 U.S.C. § 1158(d)(6). In Zheng, the
petitioner filed an application for asylum in 2000, alleging
that birth control officials forced her to have an abortion. Id.
at 178. In August of that year, the IJ gave the petitioner both
a written and an oral warning as to the consequences of filing
a frivolous asylum application. After acknowledging that she
understood the consequences, the petitioner agreed that every-
thing in her application was true and accurate. Id. at 179. In
January of 2001, the petitioner withdrew her application and
filed a new one, admitting that she had lied about her birth
control claim in the first application. In an April 2003 hearing,
the petitioner acknowledged again that she had lied. Id.
The Second Circuit: (1) determined that the petitioner
received the procedural safeguards described in In re Y-L-, 24
I. & N. Dec. 151 (BIA 2007);4 and (2) concluded that the
4
Y-L- stated that the following requirements must be met in reaching 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 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 fabri-
CHEN v. MUKASEY 6259
application contained deliberately fabricated material ele-
ments. Zheng, 514 F.3d at 180. The court then remanded the
case to the BIA “to consider antecedent issues concerning the
applicability of the frivolousness statute to an asylum applica-
tion that is filed and then withdrawn before a decision on its
merits.” Id. at 181. The Second Circuit asked the BIA to con-
sider two specific questions, one of which is relevant to the
case at bar: “Is the IJ’s authority to ‘determine[ ] that an alien
has knowingly made a frivolous application for asylum’ lim-
ited to circumstances in which the IJ makes ‘a final determi-
nation on such application?’ ” Id. (citing 8 U.S.C.
§ 1158(d)(6)) (alterations in original).
[2] In coming to the conclusion that remand was appropri-
ate, the Second Circuit explained that the language of
§ 1158(d)(6) “is susceptible of at least two meanings.” Id. The
first possible construction is “that a frivolousness finding con-
cerning an asylum application may take effect only after a
final determination is made on the same application.” Id. The
court posited that if this interpretation were correct, the frivo-
lousness finding against the petitioner must be vacated
because the IJ did not make a final determination on the mer-
its of the application. Id. Alternatively, the language could be
construed to mean “that an IJ may make a frivolousness find-
ing concerning an asylum application without also making a
final determination on such application.” Id.
We believe that the circumstances in Chen’s case are simi-
lar to the circumstances of the petitioners in both Lazar and
Zheng. Like the petitioners in Lazar and Zheng, Chen
cated; and (4) an indication that the alien has been afforded suffi-
cient opportunity to account for any discrepancies or implausible
aspects of the claim.
24 I. & N. at 155; see also 8 C.F.R. § 1208.20. In the case at bar, neither
party argues that the frivolousness finding violates the procedural safe-
guards set out in Y-L-.
6260 CHEN v. MUKASEY
received notice of the consequences of filing a frivolous
application and chose to file it anyway. Additionally, in all
three cases, once each petitioner came up with an alternative
claim for benefits under the INA, he or she withdrew the false
application. Furthermore, Chen’s application, like that of the
petitioner in Zheng, “unquestionably contained deliberately
fabricated elements.” Id. at 180. Finally, in all three cases, the
IJ did not reach a final determination on the merits of the asy-
lum application; rather, each IJ made a determination of the
frivolousness of the application, ending the proceedings on
this ground.
Our review of the required warnings, the language of the
statute and its implementing regulations, and case law from
our sister circuits reinforces our belief that the policy behind
8 U.S.C. § 1158(d)(6) is to prevent petitioners from making
frivolous applications. Chen not only lied in her application,
she lied also in her interview, obtained false documentation to
support her lie, and only withdrew her asylum application
after her I-130 status was granted. In light of these facts, we
believe the result in Lazar is correct—withdrawal of an asy-
lum application does not obviate the need for an IJ to deter-
mine whether a false application should be deemed frivolous.
We do not believe that the language of the statute is
ambiguous—in our view, the phrase “final determination on
such application” refers not to a determination as to the merits
of the application, but to a final determination as to whether
the application is frivolous.
However, in spite of our belief that Lazar was correctly
decided, in light of the Second Circuit’s decision in Zheng, we
remand to the BIA to interpret the language of section
1158(d)(6) in the first instance in order (1) to allow the
agency itself to speak to this issue, and (2) to attempt to avoid
making a decision later undercut by a different interpretation
by the BIA in Zheng.
CHEN v. MUKASEY 6261
IV
CONCLUSION
[3] We remand to the BIA to determine: (1) whether the
language of 8 U.S.C. § 1158(d)(6) requires an IJ to make a
final determination on the merits of the asylum application, or
whether the language requires only that an IJ make a final
determination that the application itself was frivolous; and (2)
whether the withdrawal of an application for asylum after it
is filed renders a subsequent frivolousness finding by an IJ
moot.
Petition GRANTED and REMANDED.
CLIFTON, Circuit Judge, concurring in the judgment:
I agree with my colleagues that this matter should be
remanded to permit the agency to answer the relevant ques-
tion in the first instance. I regret that I cannot join in that por-
tion of the majority opinion that itself provides an answer to
that question. See, e.g., majority opinion at 6254. I do not dis-
agree with the majority opinion’s answer or the analysis upon
which it is based, but if we think we should let the agency
answer the question, then I believe that we should wait to hear
that answer by the agency before providing our own.