Y-L

Cite as 24 I&N Dec. 151 (BIA 2007) Interim Decision #3563

In re Y-L-, Respondent
Decided April 25, 2007
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) In determining that an application for asylum is frivolous, the Immigration Judge must
address the question of frivolousness separately and make specific findings that the
applicant deliberately fabricated material elements of the asylum claim.

(2) Before the Immigration Judge makes a finding that an asylum application is frivolous,
the applicant must be given sufficient opportunity to account for any discrepancies or
implausible aspects of the claim.

(3) The Immigration Judge must provide cogent and convincing reasons for determining that
a preponderance of the evidence supports a frivolousness finding, taking into account any
explanations by the applicant for discrepancies or implausible aspects of the claim.
FOR RESPONDENT: Khagendra Gharti-Chhetry, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Virna A. Wright, Assistant
Chief Counsel
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and MILLER,
Board Members.
HURWITZ, Acting Vice Chairman:

In a decision dated January 22, 2004, an Immigration Judge found the
respondent removable on his own admissions and denied his applications for
asylum, withholding of removal under section 241(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1231(b) (2000), and protection under the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,
G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”). On December 4, 2004, we
affirmed the Immigration Judge’s decision without opinion, and the
respondent subsequently filed a petition for review. On July 11, 2006, the
United States Court of Appeals for the Second Circuit remanded this case with
a request that we further consider the Immigration Judge’s finding that the
respondent’s asylum application was frivolous, and that we formulate
standards for deciding when an asylum application may be found to be

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frivolous. Liu v. U.S. Dep’t of Justice, 455 F.3d 106 (2d Cir. 2006). Upon
further consideration, the respondent’s appeal from the Immigration Judge’s
finding that his asylum application was frivolous will be sustained, and that
part of our decision affirming the Immigration Judge’s ruling in that regard
will be vacated.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of the People’s Republic of China
who entered the United States in January 2002 without proper documents.
The respondent was placed in removal proceedings and filed his original
Application for Asylum and for Withholding of Removal (Form I-589) in
Immigration Court in August 2002. The claim was based principally on
problems related to his wife’s practice of Falun Gong. A statement included
with the original asylum application indicated that he and his wife had two
children, a son born on September 24, 1989, and a daughter born on May 2,
1991. In regard to the second child, the statement provided:
According to the family planning policy, we were not allowed to have a second
child. However, my wife and I believe[d] that there would not be any social security
and retirement system to assure peasants like us. Therefore we had a second child.
We hid here and there to avoid being captured by government officials. In order to
give birth to my daughter, Liu Yin Fang, we hid here and there and led a stressful life.

In support of his original application for asylum, the respondent provided
copies of his children’s birth certificates, each of which identified the
respondent as the father and the respondent’s wife as the mother. He also
submitted a copy of a Household Registration Booklet listing himself, his
wife, and his son and daughter as members of the household.
Nearly a year after filing the original asylum application, the respondent
retained new counsel and filed an amended application with a supporting
statement providing the following account of events. After their son’s birth
on September 24, 1989, his wife became pregnant again in August 1990. She
avoided the quarterly check-ups with family planning officials because the
second pregnancy violated the family planning laws. On April 20, 1991, four
family planning officials came to their home and forcibly took his wife for an
abortion. On May 8, 1991, the respondent’s sister-in-law found an abandoned
female infant alongside a road in the village. The respondent and his wife
informally adopted the infant as their own. In December 1996, the family
planning office learned of the second child and fined the respondent and his
wife for an illegal adoption. The pressures of these events affected his wife’s
health and caused her to turn to the practice of Falun Gong for relief.
The remainder of the statement tracks the Falun Gong aspects of the claim
contained in the original application and supporting statement. In support of

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his amended asylum application, the respondent submitted an abortion
certificate, a fine receipt, and statements from his wife and the sister-in-law
who found the infant.
At a hearing before the Immigration Judge, the respondent testified
concerning his request for asylum and answered questions from his attorney,
the Government attorney, and the Immigration Judge. In regard to his wife’s
second pregnancy, he testified that his wife remained at home undetected for
almost the entire term of her pregnancy until the four family planning officials
came to their home and forcibly took her for an abortion.
After the hearing, the Immigration Judge issued an oral decision denying
the respondent’s requests for relief from removal and ordering him removed
to the People’s Republic of China. In her decision, the Immigration Judge
found that the respondent had not presented a credible claim for asylum or
withholding of removal. She also found that the respondent had submitted a
frivolous application for asylum in that he had deliberately fabricated the
account of the abortion and the illegal adoption in his amended asylum
application in order to obtain immigration benefits in the United States.
The respondent appealed the Immigration Judge’s decision. In regard to
the frivolousness finding, the respondent stated in his notice of appeal that he
did not mention his wife’s abortion in the original application for asylum
because “he did not meet the attorney and he was not interviewed by the
attorney before filing the original I-589 ” and “[t]he secretary missed
mention[ing] his wife’s abortion in his original I-589.” Other than the
conclusory statement that the determination was “arbitrary and capricious,”
and that there was no confirmation from the consulate that documents
submitted by the respondent were fraudulent, the respondent’s 8-page brief
did not address the Immigration Judge’s frivolousness finding. We affirmed
the Immigration Judge’s decision without opinion.
The respondent then petitioned the Second Circuit for review, challenging
both the Immigration Judge’s adverse credibility determination and her
frivolousness finding. The Second Circuit concluded that “substantial
evidence support[ed] the credibility ruling against [the respondent]” but
remanded the frivolousness finding to give the Board “an opportunity, in the
first instance, to formulate standards for deciding when an asylum seeker’s
application may be deemed frivolous.” Liu v. U.S. Dep’t of Justice, supra,
at 108.
II. STATUTORY AND REGULATORY FRAMEWORK
In 1996, Congress amended the immigration law to discourage the filing of
frivolous asylum applications. Section 208(d)(4)(A) of the Act, 8 U.S.C.
§ 1158(d)(4)(A) (2000), requires the Attorney General to advise an alien
applying for asylum, at the time of filing an application, of the consequences

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of knowingly filing a frivolous application. See also 8 C.F.R.
§ 1240.11(c)(1)(iii) (2006). Those consequences are stated in section
208(d)(6) of the Act, which provides 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 paragraph (4)(A),
the alien shall be permanently ineligible for any benefits under this Act, effective as
of the date of a final determination on such application.

The regulation that governs the determination whether an asylum
application is frivolous provides:
For applications filed on or after April 1, 1997, an applicant is subject to the
provisions of section 208(d)(6) of the Act only if a final order by an immigration
judge or the Board of Immigration Appeals specifically finds that the alien knowingly
filed a frivolous asylum application. For purposes of this section, an asylum
application is frivolous if any of its material elements is deliberately fabricated. Such
finding shall only be made if the immigration judge or the Board is satisfied that the
applicant, during the course of the proceedings, has had sufficient opportunity to
account for any discrepancies or implausible aspects of the claim. For purposes of
this section, a finding that an alien filed a frivolous asylum application shall not
preclude the alien from seeking withholding of removal.

8 C.F.R. § 1208.20 (2006).
In preparing this regulation, the Attorney General stated that the
Department of Justice was “carrying out one of the central principles of the
asylum reform process begun in 1993; to discourage applicants from making
patently false claims.” Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum
Procedures, 62 Fed. Reg. 444, 447 (Jan. 3, 1997) (Supplementary
Information). In the Federal Register Notice promulgating the final “Asylum
Procedures” rule in 2000, the Attorney General added the following
observations:
One commenter stated that the regulatory definition of “frivolous” does not contain
appropriate safeguards, and that the Service should advise every asylum applicant of
the consequences of filing frivolous claims. The current regulation provides
appropriate safeguards by stipulating that an immigration judge or the Board must be
satisfied that an applicant had sufficient opportunity to account for any discrepancies
before finding that an applicant filed a frivolous application, and by permitting an
applicant to seek withholding of removal even if he or she is found to have filed a
frivolous application. The regulation itself also advises an applicant that he or she is
subject to the provisions of section 208(d)(6) of the Act if a final order specifically
finds that the alien knowingly filed a frivolous application. Finally, both the
instructions to the Form I-589 and the application itself warn the applicant about the
consequences of filing a frivolous claim, as required by section 208(d)(4) of the Act.

Asylum Procedures, 65 Fed. Reg. 76,121, 76,128 (Dec. 6, 2000)
(Supplementary Information).

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III. APPLYING THE STATUTORY AND REGULATORY
FRAMEWORK
The implementing regulation provides a comprehensive framework for
determining whether an asylum application is frivolous. Given the serious
consequences of a frivolousness finding, the regulation provides a number of
procedural safeguards. These include the following requirements: (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.1 We address each of these requirements in turn.
A. Notice

The statute and regulation require that the Attorney General advise the alien
at the time of filing an asylum application of the consequences of filing a
frivolous application, i.e., permanent ineligibility for any benefits under the
Immigration and Nationality Act except for withholding of removal. See
section 208(d)(6) of the Act; 8 C.F.R. § 1208.20. In this case, the record
includes a written notice from the Immigration Judge entitled “Notice of
Privilege of Counsel and Consequences of Knowingly Filing a Frivolous
Application for Asylum,” which sets forth the requisite warnings of the
consequences of filing a frivolous asylum application.2 Additionally, the
Form I-589 contains a written warning that “[a]pplicants determined to have
knowingly made a frivolous application for asylum will be permanently
ineligible for any benefits under the Immigration and Nationality Act.” At the
1
In light of the regulatory requirement that there be evidence of a deliberate fabrication of
a material element of a claim, the term “fraudulent” may be more appropriate than the term
“frivolous” when applied to a questionable asylum application. See Barreto-Claro v. U.S.
Att’y Gen., 275 F.3d 1334, 1339, n.11 (11th Cir. 2001) (observing that the term “frivolous”
generally means “insignificant, trivial, silly or gay” (quoting Webster, New International
Dictionary (3d ed. 1961))). Obvious legal insufficiency of a claim does not support a
frivolousness finding. Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1318 (11th Cir. 2006).
2
The notice, which was entered into the record as an exhibit on March 5, 2002, states in
relevant part: “Before you file an asylum application (Form I-589) the law (section
208(d)(4) of the Immigration and Nationality Act) requires that you be advised specifically
about the consequences of knowingly filing a frivolous application for asylum in the United
States. If you knowingly file a frivolous application for asylum, YOU WILL BE BARRED
FOREVER from receiving any benefits under the Immigration and Nationality Act. A
frivolous application for asylum is one which contains statements or responses to questions
that are deliberately fabricated. Not being granted asylum does not mean that your
application is frivolous.”

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time of filing the original application, then counsel for the respondent assured
the Immigration Judge that he had informed the respondent of the
consequences of filing a frivolous application for asylum. As the respondent
has not asserted a lack of notice of the consequences of filing a frivolous
asylum application, we will focus our attention on the other requirements for
a frivolousness finding.
B. Specific Findings

The regulation subjects an alien to the penalty provision for filing a
frivolous application “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.” 8 C.F.R. § 1208.20. The regulation further
provides that “an asylum application is frivolous if any of its material elements
is deliberately fabricated.” Id. An element of a claim is “fabricated” when it
misrepresents the truth. Black’s Law Dictionary 597 (8th ed. 2004) (stating
that “fabricated evidence” is “[f]alse or deceitful evidence”). A “deliberate”
fabrication involves a knowing and intentional misrepresentation of the truth.
Id. at. 459 (stating that “deliberate” means “[i]ntentional; premeditated; fully
considered”). Therefore, an Immigration Judge’s specific finding that a
respondent deliberately fabricated a material element of his asylum claim
constitutes a finding that he knowingly filed a frivolous asylum application.
As a number of courts have observed, “‘a finding of frivolousness does not
flow automatically from an adverse credibility determination.’” Liu v. U.S.
Dep’t of Justice, supra, at 113 (quoting Muhanna v. Gonzales, 399 F.3d 582,
589 (3d Cir. 2005)); see also Scheerer v. U.S. Att’y Gen., 445 F.3d 1311, 1317
(11th Cir. 2006) (“[A]n adverse credibility determination alone cannot support
a finding of frivolousness.”). We agree that the Immigration Judge must
separately address the question of frivolousness, including a discussion of the
evidence supporting a finding that the respondent deliberately fabricated a
material element of the asylum claim.
The Immigration Judge in this case, after finding the respondent not
credible, separately addressed the question of frivolousness and provided the
following analysis:
[T]he respondent’s application for political asylum has been deliberately fabricated
in order to obtain immigration benefits in the United States. The original I-589
application for political asylum indicates that the respondent has a daughter. The
statement attached to that application indicates that his wife gave birth to that
daughter and was hiding in order to be able to effectively give birth to that daughter.
The respondent’s new application is totally and completely different. It states that the
daughter was adopted when the respondent’s sister-in-law found the baby girl in a rice
paddy.
The respondent’s Q&A airport statements and credible fear interviews also mention
absolutely nothing about any family planning problems in the People’s Republic of
China, not any alleged forced abortion. The documentary evidence is totally and

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completely lacking in order to overcome these most glaring discrepancies. It appears
that the respondent and his wife do have a daughter and that she was naturally born
to the respondent. This is substantiated by the household registration booklet and
notarial birth certificate, and that the respondent has fabricated this story about an
adopted daughter, in order to obtain immigration benefits in the United States. I,
therefore, find that the respondent’s application for asylum must also be deemed
frivolous.

In these two paragraphs the Immigration Judge finds that the respondent
“deliberately fabricated” the account of the abortion and illegal adoption in the
second asylum application. As to materiality, she refers to “totally and
completely different” aspects of the amended application–principally the
account of the abortion and adoption. These findings meet the regulatory
requirement that the Immigration Judge separately address and include
specific findings that the respondent deliberately fabricated material elements
of his asylum claim.
C. Burden of proof

We now turn to whether the Immigration Judge’s findings are supported by
the evidence of record. In its remand, the court has requested that we provide
guidance regarding “who carries the burden of proof, what degree of certainty
is required, when an opportunity to be heard will be deemed sufficient, how
‘deliberate’ and ‘material’ a fabrication must be, and what deference the BIA
owes to an IJ’s finding in this context.” Liu v. U.S. Dep’t of Justice, supra,
at 113.
Ordinarily, an applicant for relief from removal has the burden of
demonstrating that he or she meets all of the requirements for eligibility for
the applicable form of relief. See 8 C.F.R. § 1240.8(d) (2006) (providing that
the alien shall have “the burden of establishing that he or she is eligible for
any requested benefit or privilege and that it should be granted in the exercise
of discretion”). Moreover, “[i]f the evidence indicates that one or more of the
grounds for mandatory denial of the application for relief may apply, the alien
shall have the burden of proving by a preponderance of the evidence that such
grounds do not apply.” Id.
A frivolousness finding, unlike a determination in regard to eligibility for
a particular form of relief governed by 8 C.F.R. § 1240.8(d), is a preemptive
determination which, once made, forever bars an alien from any benefit under
the Act. Because of the severe consequences that flow from a frivolousness
finding, the preponderance of the evidence must support an Immigration
Judge’s finding that the respondent knowingly and deliberately fabricated
material elements of the claim. 8 C.F.R. § 1208.20. Under the regulation,
plausible explanations offered by the respondent must be considered in the
ultimate determination whether the preponderance of the evidence supports
a frivolousness finding.

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In regard to the requisite degree of proof, the court in Liu v. U.S. Dep’t of
Justice, supra, at 114, suggests that an emerging principle may be that in light
of the serious consequences stemming from a frivolousness finding, “concrete
and conclusive evidence of fabrication” should be required to support a
finding of frivolousness. The court makes this suggestion after reviewing four
published decisions upholding frivolousness findings and concluding that
each involved “tangible evidence of fabrication that could not reasonably be
disputed.” Id. at 115 (citing Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th
Cir. 2005) (medical records submitted by the alien were identified by the
hospital as fraudulent); Selami v. Gonzales, 423 F.3d 621, 626-27 (6th Cir.
2005) (copied documents provided by the alien were clear forgeries when
compared to true copies of the originals); Efe v. Ashcroft, 293 F.3d 899, 908
(5th Cir. 2002) (alien’s claim regarding age was conclusively disproved by
dental records); Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334, 1339 (11th
Cir. 2001) (alien admitting he lied in his previously filed asylum application).
We find no indication in the statute or regulation that a frivolousness
finding must be supported by “concrete or conclusive” evidence of
fabrication. As a general rule, “the law draws no distinction between direct
and circumstantial evidence in requiring the government to carry its burden
of proof.” United States v. MacPherson, 424 F.3d 183, 190 (2d Cir. 2005).
Moreover, proof that conduct was knowing or deliberate may be demonstrated
by circumstantial evidence. Mayer v. Oil Field Systems Corp., 803 F.2d 749
(2d Cir. 1986). After taking into account the respondent’s explanations for
discrepancies or implausible aspects of the claim, however, the Immigration
Judge must provide cogent and convincing reasons for finding by a
preponderance of the evidence that an asylum applicant knowingly and
deliberately fabricated material elements of the claim.
As the Attorney General emphasized at the time the regulation was
promulgated, the regulatory standards for the frivolousness finding have been
formulated with the severity of the consequences in mind. See Asylum
Procedures, 65 Fed. Reg. at 76,128 (“The Department believes that the current
regulation provides for appropriate safeguards for filing a frivolous asylum
application, and that, for the reasons set forth in the supplemental information
to the January 3, 1997, proposed rule, the definition of frivolous is
sufficient.”) (Supplementary Information). As discussed below, in addition
to mandating notice of consequences and specific findings of deliberate
fabrication of a material element of the asylum application, as well as placing
the ultimate burden of proof on the Government, the regulation requires that
particular attention be given to providing the alien a sufficient opportunity to
account for any discrepancies or implausible aspects of the claim relied on in
the frivolousness finding.
In considering an appeal from an Immigration Judge’s decision filed after
September 25, 2002, as was the appeal in this case, we give de novo review

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to questions of law, discretion, and judgment, but review findings of fact only
for clear error. 8 C.F.R. §§ 1003.1(d)(3)(i)-(ii) (2006). We may not engage
in fact-finding of our own other than to take administrative notice of
commonly known facts. 8 C.F.R. § 1003.1(d)(3)(iv). Determining whether
a fabrication was knowing or deliberate is a factual question of intent that is
reviewed for clear error. See United States v. Awadallah, 349 F.3d 42, 65 (2d
Cir. 2003). Whether a fabrication was material involves mixed questions of
fact and law. See United States v. Gaudin, 515 U.S. 506, 521 (1995).
Whether the Immigration Judge properly applied the regulatory framework is
a question of law.
In her decision, the Immigration Judge identified concerns regarding
discrepancies and plausibility that indicated to her that the respondent may
have deliberately fabricated material elements of his amended asylum
application. See Monter v. Gonzales, 430 F.3d 546, 553-54 (2d Cir. 2005)
(stating that a misrepresentation is material if it has “‘a natural tendency to
influence or was capable of influencing, the decision of the decisionmaking
body to which it was addressed’” (quoting Kungys v. United States, 485 U.S.
759, 770 (1988))). These concerns were not mere incidental or tangential
discrepancies or omissions. As the court acknowledged in its assessment of
the Immigration Judge’s credibility determination, the respondent’s claim in
his original application “that his wife gave birth to their second child, rather
than simply reporting (without emphasis or elaboration) that they had adopted
their daughter in May 1991” is a “glaring inconsistency” when compared to
the new claims in the amended application based on an illegal adoption of that
same child after a forced abortion. Liu v. U.S. Dep’t of Justice, supra, at 111.
As the respondent’s explanations must be considered in determining
whether a preponderance of the evidence ultimately supports the frivolousness
finding, we turn to the question whether the respondent was afforded a
sufficient opportunity to account for the discrepancies and implausible aspects
of his claim relied on by the Immigration Judge.
D. Sufficient Opportunity To Explain

The regulation requires that the frivolousness finding “shall only be made
if the immigration judge or the Board is satisfied that the applicant, during the
course of the proceedings, has had sufficient opportunity to account for any
discrepancies or implausible aspects of the claim.” 8 C.F.R. § 1208.20. The
regulation requires that the alien be given “ample opportunity during his
hearing to address and account for any deliberate, material fabrications upon
which the IJ may base a finding of frivolousness.” Mingkid v. U.S. Att’y Gen.,
468 F.3d 763, 769 (11th Cir. 2006) (quoting Scheerer v. U.S. Att’y Gen.,
supra, at 1317).
In order to afford a sufficient opportunity to account for discrepancies, it
would be a good practice for an Immigration Judge who believes that an

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applicant may have submitted a frivolous asylum application to bring this
concern to the attention of the applicant prior to the conclusion of
proceedings. See, e.g., Farah v. Ashcroft, 348 F.3d 1153, 1158 (9th Cir.
2003) (finding that where the Immigration Judge relied on different
inconsistencies in making the adverse credibility determination from those
used in making the frivolousness determination, the respondent lacked a
sufficient opportunity to explain the discrepancies related to the frivolousness
finding). In some cases, the Government may raise the issue of frivolousness
during the course of the hearing. See, e.g., Ignatova v. Gonzales, supra, at
1214 (noting that the Government filed a motion requesting that the
Immigration Judge address whether the application was frivolous). In other
situations, the Immigration Judge may raise the issue and afford the
respondent an opportunity to respond with an explanation or corroborating
evidence. See, e.g., Selami v. Gonzales, supra (observing that the
Immigration Judge adjourned the hearing to afford the respondent an
opportunity to respond to concerns that documents submitted in support of his
asylum application appeared to be forged).
In the case before us, the Immigration Judge did not mention during the
course of the hearing that she was contemplating a frivolousness finding. We
do not find that the particular concerns underlying the frivolousness finding
were such that the respondent should necessarily have anticipated such a
finding and provided explanations relevant to the question whether he
deliberately fabricated the account of the forced abortion and illegal adoption
in the second application. See Ye v. Dep’t of Homeland Security, 446 F.3d
289 (2d Cir. 2006) (finding that for purposes of an adverse credibility
determination the respondent need not be afforded an opportunity to respond
to self-evident inconsistencies).3
The respondent did, however, explain during the course of the hearing why
the new claims in his amended asylum application were not included in his
original application. In a cover statement accompanying his amended
application, he explained that when he filed the original asylum application
he did not know that family planning was a basis for asylum, that he had never
spoken to his first attorney, that the original asylum application was never read

3
The requirement that the respondent be afforded a sufficient opportunity to explain is not
to be applied in a mechanical fashion. There may be situations in which the deliberate
fabrication of a material aspect of the asylum claim is so clear on the record that a formal
request for an explanation would be a needless exercise. See, e.g., Barreto-Claro v. Att’y
Gen., supra (finding that the respondent’s admissions that he stated falsely on his first
asylum application that he had never before applied for refugee or asylum status and that he
gave a fraudulent account of how he came to the United States established that he
deliberately fabricated facts that were materially relevant to the question whether he had
been firmly resettled in another country prior to arrival in the United States).

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back to him, and that he did not have a chance to correct mistakes in the
original application prior to the time it was filed in Immigration Court.4
Although the respondent’s explanations raise as many questions as they
answer, they do have some bearing on whether he deliberately fabricated
critical aspects of the amended application and, therefore, should have been
addressed and evaluated by the Immigration Judge. See Ming Shi Xue v. BIA,
439 F.3d 111, 123 (2d Cir. 2006) (finding that the Immigration Judge erred
in failing to consider the explanations that an applicant gave in order to rectify
discrepancies in testimony).
The respondent essentially blames his first attorney and that attorney’s
secretary for including incorrect information in his first application, for
missing essential elements of his persecution claim that necessitated the filing
of an amended application, and for failing to obtain his verification of the
contents of his statement accompanying the original application. The
regulation provides that “[t]he applicant’s signature [on an asylum
application] establishes a presumption that the applicant is aware of the
contents of the application.” 8 C.F.R. § 1208.3(c)(2) (2006). The
respondent’s first attorney signed the declaration under Part E of the original
asylum application verifying that the information in the application “was
provided to me by the applicant and that the completed application was read
to the applicant in his or her native language or a language he or she
understands for verification before he or she signed the application in my
presence.”
Under the circumstances in this case, the Immigration Judge had good
reason to be concerned with the plausibility of the abortion and illegal
adoption aspects of the respondent’s amended asylum application. She should
not, however, have entered a frivolousness finding without communicating
these concerns to the respondent before concluding the proceedings and
without addressing the respondent’s explanations. Had she confronted the
respondent with her concerns, she could have further probed for clarification
of the manner in which the original asylum application was prepared. See
Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997) (describing the shared
responsibility of parties and the Immigration Judge to assure that relevant

4
The respondent’s concession that his first statement included erroneous information is not
enough in and of itself to indicate that he knowingly filed an application containing a
deliberate fabrication of a material element of his claim. He contends that he was unaware
of the incorrect information included in that application and unaware that his wife’s forced
abortion or their fines for illegally adopting a child could be relevant to a claim for asylum.
As we are limited to reviewing the Immigration Judge’s findings for clear error and do not
engage in factual determinations, our focus on appeal is limited to whether the evidence
supports a finding in regard to the factors in the amended asylum application identified by
the Immigration Judge as deliberately fabricated or implausible material elements of the
claim.

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evidence is included the record). Further inquiry could have included a
request for corroborating evidence from former counsel regarding the manner
in which the first asylum application was prepared.5
IV. CONCLUSION
At the time of filing his amended asylum application, the respondent
provided explanations relevant to the question whether he had deliberately
fabricated a material element of the claims in his amended asylum application.
These explanations should have been more fully explored during the course
of the hearing and addressed in the Immigration Judge’s decision. For these
reasons, we find that the “frivolousness” determination in this case does not
meet the regulatory requirement that the respondent be afforded a sufficient
opportunity to explain perceived discrepancies or implausibilities. We will
therefore vacate our prior decision to the extent that it affirms the Immigration
Judges’ frivolousness finding and sustain the respondent’s appeal from that
finding.
ORDER: Our prior decision is vacated to the extent that it affirms the
Immigration Judge’s frivolousness finding, and the respondent’s appeal from
the Immigration Judge’s frivolousness finding is sustained.
FURTHER ORDER: The respondent is ordered removed from the
United States to the People’s Republic of China pursuant to the Immigration
Judge’s decision of January 22, 2004.

5
When an applicant for asylum claims ineffective assistance of counsel as an exception to
the 1-year deadline for filing an asylum application, for example, he must file an affidavit
describing the agreement entered into with counsel, inform counsel whose integrity or
competence is being impugned of the allegations being leveled and provide an opportunity
to respond, and indicate whether a complaint has been filed with appropriate disciplinary
authorities with respect to any violation of counsel’s ethical or legal obligations. 8 C.F.R.
§ 1208.4(a)(5)(iii) (2006); see also Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d,
857 F.2d 10 (1st Cir. 1988) (setting forth the same requirements for motions to reopen based
on ineffective assistance of counsel).

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