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
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.

2792 LIU v. HOLDER
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 Nationality 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 submitted 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 frivolousness 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 immigraLIU v. HOLDER 2793
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 testified and introduced evidence, the IJ denied Liu’s application. The IJ first ruled (erroneously) that Liu could not qualify

for asylum or withholding of removal because her membership in Falun Gong fell within neither the “particular social

group” nor “political opinion” categories.3 The IJ further concluded that Liu did not meet the requirements for relief under

the Convention Against Torture. The IJ alternatively denied

1Falun Gong is a spiritual movement that blends Buddhist and Taoist

philosophies with meditation and martial arts exercises. See Zhang v. Ashcroft, 388 F.3d 713, 715 (9th Cir. 2004) (per curiam). 

2This 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 credibility even though the asylum officer did not testify at the hearing. See

Singh v. Gonzalez, 403 F.3d 1081, 1089 (9th Cir. 2005). 

3The 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 persecution 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). 

2794 LIU v. HOLDER
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 “answer 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. 

LIU v. HOLDER 2795
After making the adverse credibility determination, the IJ

“further ma[de] a finding that the applicant ha[d] filed a frivolous asylum application.” The IJ’s decision specified four

grounds for the frivolousness finding, including the conflicting 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 determination. 

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 unopposed 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

4Although the IJ lists six grounds, the first and second discuss the different 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. 

2796 LIU v. HOLDER
new procedural requirements for finding an asylum application 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 credibility. 

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. Second, the BIA found the IJ had separately analyzed and made

findings regarding deliberate fabrication. Third, the BIA discussed specific grounds it identified as supporting the frivolousness finding by a preponderance of the evidence. The BIA

noted the absence of any reference to Falun Gong in Liu’s airport 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).

LIU v. HOLDER 2797
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 substantial 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 question 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 finding of frivolousness does not flow automatically from an

adverse credibility determination.” Id. The heightened substantive and procedural requirements for a frivolousness finding 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.

2798 LIU v. HOLDER
§ 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 interviews as valuable impeachment sources because of the conditions under which they are taken and because a newlyarriving alien cannot be expected to divulge every detail of

the persecution he or she sustained.” We nonetheless concluded that substantial evidence supported the adverse credibility 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 determination. 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

LIU v. HOLDER 2799
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

2800 LIU v. HOLDER
differing dates and unsatisfactory explanation further undermined 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 adequate 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 credibility 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 Nationality 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 procedural requirements for a frivolousness finding are more stringent 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 insufficient to support the frivolousness finding.

5Because Liu failed to meet her burden of establishing eligibility for

asylum, she necessarily failed to satisfy the higher standard for withholding 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). 

LIU v. HOLDER 2801
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 “deliberate[ ] fabricat[ion],” 8 C.F.R. § 1208.20, and the applicant 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 ‘frivolous’ 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 discrepancy” that may support an adverse credibility determination. See

Khadka, 618 F.3d at 1002. 

[6] Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated,

whereas an adverse credibility determination may be supported 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 government 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 credibility finding must be supported only by substantial evidence.

See Khadka, 618 F.3d at 1002 & n.5.

6The 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). 

2802 LIU v. HOLDER
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 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.

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 requirement. 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 delibLIU v. HOLDER 2803
erately fabricated a material element of her asylum application. 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 discrepancies or implausible aspects of the claim” before they

can be used by the IJ as grounds for a finding of frivolousness. 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 particular grounds relied on by the IJ in making a frivolousness finding) (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 clarified 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 warnings 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

2804 LIU v. HOLDER
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 punishment 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 simply failed to articulate a persuasive or even credible explanation of the inconsistencies. 

[10] The BIA, however, found the IJ’s announcement at

the end of the hearing that she intended to make a frivolousness finding sufficient to satisfy In re Y-L-’s fourth requirement. 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?

LIU v. HOLDER 2805
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 provided Ahir with a lengthy and detailed explanation of the discrepancies 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 frivolousness 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-ofhearing declaration of her intent to make a frivolousness finding 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 previously, Liu did have some opportunity to explain this discrepancy, 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 testimony, but not that she realized the IJ believed she was presenting a deliberately false claim to the court meriting a

2806 LIU v. HOLDER
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 forward a fraudulent asylum claim, the IJ needed to do more to

make that clear to Liu so she could try to dispel that impression.

[12] Given the harsh consequences that follow from a frivolousness 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 proposed 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 premeditated fraud. Cf. Khadka, 618 F.3d at 1004 (“Given proper

warning, an asylum applicant may be able to rebut an allegation that he filed a frivolous asylum application without actually 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 conflicting dates of her uncle’s arrest sufficed for frivolousness

purposes, the date discrepancy by itself is insufficient evidence of fraud under In re Y-L-’s third requirement. Although

the discrepancy supports the IJ’s adverse credibility determination, and thus the IJ’s conclusion that Liu failed to carry her

burden of demonstrating eligibility for asylum relief, the burden shifts to the government to prove that Liu filed a frivolous

LIU v. HOLDER 2807
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 acknowledged, 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 element” 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 frivolousness 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 frivolousness. Liu had some opportunity to address this issue, but

as we have explained, even when coupled with other inconsistences this omission was at best barely sufficient to support

the IJ’s adverse credibility finding. Accordingly, it alone cannot meet the heightened requirements for a frivolousness finding.

[13] In sum, because Liu was not given a proper opportunity to address most of the grounds cited for the frivolousness

finding, and because the grounds she did have some opportunity 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.

2808 LIU v. HOLDER
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 prosecutorial 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, however, 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 proceedings.”).

[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 process 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 finding, vacate that finding and remand to the BIA for further proLIU v. HOLDER 2809
ceedings consistent with this opinion. The parties shall bear

their own costs on appeal.

GRANTED in part; DENIED in part; and

REMANDED.

2810 LIU v. HOLDER