On December 12, 2016, the Board of Immigration Appeals (BIA or Board) issued a decision in an appeal of a removal order by one found by the Immigration Judge (IJ) to have knowingly made a frivolous asylum application; respondent had falsely claimed in a 2000 asylum application to have arrived in 1999, not 1997, his actual year of entry. When he could not submit “sufficiently credible evidence of timeliness”, removal proceedings were initiated. Subsequently, respondent withdrew his asylum application and filed for adjustment of status (AOS) but the IJ held respondent had deliberately fabricated his arrival date and deemed the application frivolous under INA §208(d)(6). In turn, respondent – citing Luciana v. Attorney General of the United States, 502 F.3d 273 (3rd Cir. 2007) – argued that his asylum application could not be found frivolous because it was filed more than one year after his entry and no filing deadline exceptions applied, so no fabricated elements could be “material” to his claim. The IJ was not persuaded and ordered the applicant removed.
In its decision, the Board held that indeed an untimely asylum application could be found frivolous citing to Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010), the 3rd in a line of BIA precedent decisions analyzing §208(d)(6), X-M-C- which held that a frivolousness determination can be made even where no final decision has been rendered on the underlying application because the only action required to trigger a frivolousness inquiry is the filing of an asylum application. Additionally, X-M-C- found that where the required warnings as to the potential punishments for a frivolous application were given, withdrawal of the application does not prevent a frivolousness finding. The BIA held that respondent had received sufficient warning but has still knowingly filed a frivolous application in that he “deliberately fabricated” a material element of his claim by misrepresenting his date of entry. In making the initial finding, noted the Board, the IJ had distinguished the Luciana decision by finding that respondent’s falsification “was material to whether his asylum application was time barred, whereas the misrepresentation of the petition in Luciana was irrelevant to the timeliness of her application”. The Board agreed with this conclusion.
As such, the BIA found that Luciana was not controlling in this case and held that, to the extent it holds that any deliberate fabrication relating to the merits of a time-barred asylum application is immaterial to the frivolousness bar, it is inconsistent with X-M-C-. Reiterating X-M-C-‘s holding that the materiality of a fabricated element of an asylum application is determined when the application is filed, the Board ruled that one “who has deliberately fabricated a potentially dispositive element of an asylum application may be subject to the frivolousness bar” of §208(d)(6), even if he or she is ineligible for asylum on some other ground.
Upholding the IJ’s ability to make a frivolousness finding regarding a time-barred application, even where the falsity relates to the merits, the BIA dismissed the appeal. Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016).
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