Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

1 We did not rely on the Immigration Judge’s alternative determination that the respondent

was ineligible for asylum for failing to timely file the asylum application.

236

Matter of B-Y-, Respondent

Decided May 6, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In making a frivolousness determination, an Immigration Judge may incorporate

by reference any factual findings made in support of an adverse credibility finding,

so long as the Immigration Judge makes explicit findings that the incredible aspects of the

asylum application were material and were deliberately fabricated. Matter of Y-L-,

24 I&N Dec. 151 (BIA 2007), clarified.

(2) In considering an asylum applicant’s explanations for inconsistencies or discrepancies,

an Immigration Judge making a frivolousness determination must separately address the

applicant’s explanations in the context of how they may have a bearing on the materiality

and deliberateness requirements unique to that determination.

(3) When the required frivolousness warnings have been given to an asylum applicant prior

to the merits hearing, the Immigration Judge is not required to afford additional warnings

or to seek further explanation in regard to inconsistencies that have become obvious

during the course of the hearing.

FOR RESPONDENT: Raymond Lo, Esquire, New York, New York

FOR THE DEPARTMENT OF HOMELAND SECURITY: Ramin Rastegar, Assistant

Chief Counsel

BEFORE: Board Panel: HOLMES, HESS, and GUENDELSBERGER, Board Members.

GUENDELSBERGER, Board Member:

This case was last before us on May 10, 2006, when we affirmed the

Immigration Judge’s adverse credibility determination and his finding that the

respondent had submitted a frivolous asylum claim.1

 On July 31, 2007, the

United States Court of Appeals for the Second Circuit upheld the adverse

credibility determination and the resulting denial of the respondent’s claims for

asylum and withholding of removal but remanded the case to us for further

analysis of the frivolousness determination. Biao Yang v. Gonzales, 496 F.3d

268 (2d Cir. 2007). The court also directed that we address the respondent’s
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

237

claim for withholding of removal 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”).

Upon further consideration, the respondent’s appeal will be sustained in part,

and the record will be remanded to the Immigration Judge.

I. FACTUAL AND PROCEDURAL HISTORY

A. Respondent’s Asylum Claim

The respondent, a native and citizen of China, arrived in the United States

in November 2002 at the Chicago O’Hare International Airport. Soon after

landing, he was interviewed at the airport by immigration officials. During the

airport interview, he indicated that family planning authorities in China had

forced his girlfriend to abort her pregnancy and that they wanted to arrest him

and charge him with a fine.

In his asylum application, filed with the Immigration Court on April 16,

2004, the respondent provided additional information regarding the events

leading up to and following his girlfriend’s abortion. The statement

accompanying the asylum application indicates that he struggled with and

injured one of the family planning officials when they came to take his

girlfriend for an abortion on May 16, 2002. The statement also describes

a May 20, 2002, confrontation with family planning officials, during which the

respondent was detained and beaten before he managed to escape. 

B. Adverse Credibility Determination

The Immigration Judge’s adverse credibility finding was based on a variety

of factors, including (1) omissions in the airport interview of events included

in the asylum application; (2) inconsistencies between the asylum application

and the airport interview; (3) inconsistencies between testimony and the

asylum application; and (4) inconsistencies within the testimony, as well

as implausible testimony. The Board found that the Immigration Judge’s

adverse credibility finding was not clearly erroneous.

The Second Circuit identified the following findings by the Immigration

Judge, among others, as substantial evidence in support of the adverse

credibility determination:

(1) Yang’s failure to mention at his airport interview that he was ever arrested

or beaten; (2) inconsistencies in his testimony regarding the chronology of events;

(3) an implausible and inconsistent account of how he escaped from detention; (4) the
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

238

IJ’s observation that Yang appeared to be “simply making up testimony when

confronted by inconsistencies”; (5) contradictory and implausible testimony regarding

his employment; and (6) contradictory evidence regarding when Yang decided

to leave China. 

Biao Yang v. Gonzales, 496 F.3d at 272. The court also found that the

Immigration Judge properly relied on the transcript of the airport interview

because there was no evidence of coercion or any other indication

of unreliability in the conduct of the airport interview or in the preparation

of the record of the interview. Id.

C. Immigration Judge’s Frivolousness Finding

After denying asylum and withholding of removal for lack of credibility, the

Immigration Judge separately addressed whether the respondent had filed

a frivolous asylum application, reasoning as follows:

At a master calendar proceeding conducted before the undersigned on April 16th,

2004, the respondent was provided with warnings concerning frivolous asylum

applications pursuant to INA Section 208(d)(4). . . . The respondent, at that time,

advised that he understood the nature and gravity of the warnings. The respondent

was reminded today by the Court of the gravity of the warnings. Once again, the

respondent testified that he understood the nature and gravity of the warnings.

Notwithstanding the representations of the respondent regarding his understanding

of the nature and gravity of the warnings concerning frivolous asylum applications,

it is clear to the Court that the respondent has submitted a clearly fabricated

application for asylum. 

The Court comes to this conclusion based not only on the multiple inconsistencies

uttered by the respondent regarding the narrative leading up to and from his alleged

confrontation with family planning officials on May 20th, 2002, but also from the

rank inconsistency between the respondent’s application for relief and the [airport

statement]. 

The Court finds that the asylum application has been fabricated and will apply the

lifetime bar to future immigration benefits pursuant to INA Section 208(d)(6).

II. ISSUES ON REMAND

In Matter of Y-L-, 24 I&N Dec. 151, 155 (BIA 2007), the Board provided

a set of standards to be applied in making a frivolousness determination,

including 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.
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

239

Our decision in Matter of Y-L- was not rendered until after the Immigration

Judge and the Board issued their decisions in this case. The court asks in its

remand order that we further consider the frivolousness determination in this

case under the standards established in Matter of Y-L- and that we clarify

certain issues raised by those standards. 

The court indicated that the guidance provided in Matter of Y-L- raised

a number of additional issues including the following: 

(1) to what extent the IJ is required to set out his or her factual findings to support

a frivolousness determination separately from the adverse credibility determination

and to what extent he or she is permitted to incorporate by reference the findings made

to support an adverse credibility determination; (2) to what extent the IJ is required

to consider the applicant’s explanations for any discrepancies separately from the

adverse credibility determination; (3) to what extent the IJ is required to explicitly

find that the fabrications at issue were “deliberate” or “material”; and (4) to what

extent the IJ is required, if at all, to inform the applicant during the course of the

proceedings that he or she is considering a frivolousness determination before

he or she renders such a determination. 

Biao Yang v. Gonzales, 496 F.3d at 279. We will address each of these issues

in turn and then address the sufficiency of the frivolousness determination

in this case.

III. ANALYSIS OF REQUIREMENTS FOR 

FRIVOLOUSNESS FINDINGS

A. Incorporation by Reference

The court has requested that we address the extent to which an Immigration

Judge making a frivolousness determination may incorporate by reference

factual findings that were made in support of an adverse credibility finding.

The court asks in particular whether the Immigration Judge in this case

complied with Matter of Y-L- when, although he “did separately address the

frivolousness determination, he did not make specific factual findings

supporting that determination, except to arguably incorporate by reference

findings he already made in the context of the adverse credibility

determination.” Biao Yang v. Gonzales, 496 F.3d at 277. 

In this case, as is often the situation, fact-finding regarding credibility

overlaps with fact-finding as to whether an asylum application was frivolously

filed. Both determinations involve the identification of inconsistencies and

discrepancies in the asylum claim and consideration of any explanations

offered for them. There may be circumstances where the pertinent facts do not

overlap, and separate factual findings by an Immigration Judge will
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

240

be necessary. However, neither fairness nor clarity requires an Immigration

Judge to separate and repeat those aspects of the credibility determination that

overlap with the frivolousness determination. 

The frivolousness determination, however, requires explicit findings

as to “materiality” and “deliberate fabrication” that are not required for

an adverse credibility determination. As we indicated in Matter of Y-L-,

24 I&N Dec. at 156, “[T]he 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.” 

B. Separate Consideration of Explanations for Inconsistencies 

and Discrepancies

In a similar vein, the court has requested that we clarify whether separate

consideration of explanations for inconsistencies and discrepancies is required

under Matter of Y-L-. The court notes that “while the IJ considered Yang’s

explanations for the inconsistencies and discrepancies when making his

adverse credibility determination, he did not separately consider them when

making his frivolousness determination.” Biao Yang v. Gonzales, 496 F.3d

at 277. 

To a large extent, explanations that are unconvincing in an adverse

credibility finding will also fail in the context of the frivolousness

determination. Two considerations, however, counsel in favor of a separate

analysis of explanations offered during the frivolousness determination. First,

the burden of proof differs as to credibility and frivolousness. The respondent

has the burden of demonstrating credibility, while the Government bears the

burden in the frivolousness determination. See Matter of Y-L-, 24 I&N Dec.

at 157-58. Explanations that fail to meet the burden in the credibility

determination may be sufficient to tip the balance in the other direction in the

context of the frivolousness determination. 

Second, a separate assessment of the explanations for inconsistencies and

discrepancies is required for the frivolousness finding insofar as the

explanations offered may have a bearing on the determination of materiality

or deliberateness of fabrication. Therefore, while some incorporation

by reference from the adverse credibility findings and analysis is permissible,

the Immigration Judge’s frivolousness determination should separately address

the respondent’s explanations in the context of how they may have a bearing

on the materiality and deliberateness requirements unique to that

determination. The bases for a frivolousness determination should preferably

be addressed under a section of the decision separate and apart from the

credibility determination. 
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

241

C. Explicit Findings that Fabrications Were “Deliberate” and “Material”

The court has asked that we clarify whether explicit findings as to

deliberateness and materiality are required. The court notes that in the

decision below “the IJ never explicitly stated that the fabrications were

‘deliberate,’ or that the fabrications were ‘material’ to Yang’s asylum claim.”

Biao Yang v. Gonzales, 496 F.3d at 277. In its discussion, the court states:

The IJ, while laying out the factual findings to support an adverse credibility

determination, certainly made comments which could lead to the inference that the

fabrications were “deliberate and material” (e.g., “[it] would appear that [Yang]

is simply making up testimony when confronted by inconsistencies,” “I am not

convinced that [Yang] has provided any credible testimony which would allow the

Court to determine what subjective fear, if any, [Yang] actually has of returning

to China”); however, the IJ never specifically made such findings. Y-L-, by contrast,

appears to specifically require an IJ to find that an asylum applicant “deliberately

fabricated material elements of his asylum claim.”

Id. (quoting Matter of Y-L-, 24 I&N Dec. at 157). As indicated in the

discussion of the previous two points, the Immigration Judge, after identifying

the inconsistencies or other reasons relied upon in the frivolousness finding,

must make specific findings based on cogent reasoning that material aspects

of the claim were deliberately fabricated. These findings should not simply be

left to be inferred or extrapolated from the strength of the overall adverse

credibility determination. As we stated in Matter of Y-L-, 24 I&N Dec. at 158,

“[T]he 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.” 

D. Warnings That a Frivolousness Determination Is Being Considered 

The court also asks for clarification of whether and when an Immigration

Judge may be required to provide additional warnings, during the merits

proceedings, that a frivolousness finding is being considered. The court

indicates that it finds Matter of Y-L- confusing on this point because the

Board’s decision initially states that “it would be a 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.” Matter of Y-L-, 24 I&N

Dec. at 159-60 (emphasis added). The court points out that later in Matter

of Y-L-, the Board “appears to require” that the Immigration Judge bring

the frivolousness issue to the respondent’s attention where it would not

be obvious to an applicant that such a finding was being considered.

Biao Yang v. Gonzales, 496 F.3d at 276. Moreover, given the dramatic
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

2

 In Matter of Y-L-, we based our remand, in part, on concerns that the Immigration Judge

did not address a cover letter accompanying the second asylum application. The cover letter

offered an explanation for inconsistencies between the two asylum applications that may

have been relevant to the issue of deliberate fabrication. We indicated that had the

Immigration Judge “confronted the respondent with her concerns, she could have further

probed for clarification of the manner in which the original asylum application was

prepared.” Matter of Y-L-, 24 I&N Dec. at 161. 

242

inconsistencies at issue in Matter of Y-L- and the Board’s indication that the

Immigration Judge should have probed for further explanation, the court

indicates that “it is possible to conclude that the [Board] intended to require

an IJ to specifically warn an applicant that he or she is contemplating

a frivolousness finding in most circumstances and not just with respect

to inconsistencies that are not obvious.” Id. at 276 n.4. 

We clarify that our “good practice” suggestion in Matter of Y-L- was not

meant to add a blanket requirement that an Immigration Judge must provide

additional warnings during the course of the merits hearing that a frivolousness

determination is being considered.2

 Sufficient notice is afforded when the

Immigration Judge explains the consequences of filing a frivolous asylum

application, either at the time the asylum application is filed or prior

to commencement of the merits hearing. See Chen v. Mukasey, 527 F.3d 935,

940 (9th Cir. 2008) (indicating that “the notice of consequences of knowingly

filing a frivolous application . . . must be issued to a petitioner by an IJ”); cf.

Ribas v. Mukasey, 545 F.3d 922, 930 (10th Cir. 2008) (concluding “as a matter

of law, that the written notice on the asylum form is sufficient”). 

In making an adverse credibility determination, the opportunity for

explanation requires that an Immigration Judge not rely on inconsistencies that

take a respondent by surprise. See Ming Shi Xue v. BIA, 439 F.3d 111 (2d Cir.

2006) (remanding to further address an adverse credibility determination

where “neither the IJ nor the government identified the concerns undergirding

the IJ’s credibility finding before the IJ announced them in his ruling”).

If an inconsistency is obvious or glaring or has been brought to the attention

of the respondent during the course of the hearing, however, there

is no requirement that a separate opportunity for explanation be provided prior

to making the adverse credibility determination. See Ye v. Dep’t of Homeland

Sec., 446 F.3d 289 (2d Cir. 2006). We find that the same benchmark for

opportunity for explanation should apply to the frivolousness determination.

When the required frivolousness warnings have been given to the respondent

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 respondent during the

course of the hearing.
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

243

We note that Immigration Judges often provide more notice and opportunity

for explanation to asylum applicants than that which is required by statute,

regulation, or minimum due process standards. Before making a frivolousness

determination, an Immigration Judge may, therefore, in the interests

of fairness, bring even obvious or glaring inconsistencies to the attention of the

respondent in order to provide an opportunity for an explanation.

As we stated in Matter of Y-L-, 24 I&N Dec. at 160 n.3, “The requirement

that the respondent be afforded a sufficient opportunity to explain is not

to be applied in a mechanical fashion.” The goal in every case is to assure that

the respondent has a fair opportunity to address any discrepancies that may

form the basis of the frivolousness determination. Whether a full and fair

opportunity to address inconsistencies has been afforded depends on the

totality of the circumstances, including the nature and extent of the

inconsistencies at issue, the manner in which the asylum application was

prepared, and whether the respondent was represented by counsel at the merits

hearing.

IV. FRIVOLOUSNESS DETERMINATION REGARDING

RESPONDENT’S APPLICATION

In this case the Immigration Judge provided adequate warnings of the

consequences of filing a frivolous asylum application. In addition to the

written warnings in the asylum application, the Immigration Judge gave the

respondent additional written and oral explanations of the consequences

of submitting a frivolous asylum application, both at the time the application

was filed and during the course of the merits hearing. As discussed below,

however, the Immigration Judge did not sufficiently identify the factors relied

upon in the frivolousness determination and did not make the specific findings

regarding materiality and deliberate fabrication required by Matter of Y-L-.

In the frivolousness determination, the Immigration Judge referred to two

categories of factors addressed in the adverse credibility determination:

(1) “multiple inconsistencies uttered by the respondent regarding the narrative

leading up to and from his alleged confrontation with family planning officials

on May 20th, 2002 ” and (2) “the rank inconsistency between the respondent’s

application for relief and the [airport statement].” These categorical references

lack the requisite specificity. Moreover, some of the factors within the

referenced categories do not necessarily support a frivolousness determination.

For example, the Immigration Judge found that “[t]he respondent has

essentially admitted, in any event, that he was not providing truthful testimony

at the airport.” The simple fact that the respondent admitted or was found

to have fabricated statements in the airport interview, which was conducted

prior to the submission of the asylum application and the frivolous warnings,
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

3 However, statements in an airport interview may be relevant to a determination that

an asylum application contains deliberate and materially false statements if the statements

in the airport interview are inconsistent with claims made in the asylum application.

4 Had this case involved differences between an initial asylum application and a later filing,

rather than an airport interview and a subsequent asylum application, the factors relied upon

by the Immigration Judge would provide a stronger basis for supporting the frivolousness

determination. See, e.g., Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 2008) (upholding

a frivolousness determination, even in the absence of “direct extrinsic evidence”

of fabrication, where the asylum application referred to multiple arrests, a subsequently filed

application for adjustment of status indicated that the applicant had never been arrested, and

the applicant was unable to resolve the inconsistencies). 

244

is not an independent basis to find the asylum application to be frivolous,

because the statements may or may not relate to the factual basis for the

asylum application.3

 Similarly, omissions in the airport interview, without

some explanation as to how they support a finding of a deliberate

misrepresentation in the asylum application, cannot be an independent basis

for a frivolousness determination.4

Turning to the requirement that there be a specific finding that material

inconsistencies were deliberately fabricated, the United States Supreme Court

has stated that “a concealment or misrepresentation is material if it ‘has

a natural tendency to influence . . . the decision of’ the decisionmaking body

to which it was addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988)

(quoting Weinstock v. United States, 237 F.2d 669, 701 (D.C. Cir. 1988)). The

Immigration Judge does not directly address materiality in the frivolousness

determination but refers to “rank inconsistency.” Assuming that this term

equates to “material inconsistency,” the decision fails to identify which

particular inconsistencies incorporated by reference were considered “rank.”

Some of the inconsistencies incorporated by the Immigration Judge are

relatively minor and would not, considered alone, enhance the respondent’s

claim to asylum. For example, whether the respondent stopped by his home

after leaving work on the morning of May 20, 2002, or went directly to the

family planning office does not advance the merits of his claim one way or the

other. Similarly, the place where the respondent went immediately after

escaping from authorities, the omission of any reference to his employment

in the airport interview, and the time that he first learned that the police were

looking for him appear to have only a tangential bearing on whether the

respondent deliberately fabricated a material element of his claim. 

Given the severe consequences of a frivolousness determination and our

limited fact-finding ability on appeal, we will remand the record to permit the

Immigration Judge to specifically identify the inconsistencies or other factors

relied upon in the frivolousness determination and to further address whether

the respondent deliberately fabricated a material element of his asylum
Cite as 25 I&N Dec. 236 (BIA 2010) Interim Decision #3680

5 The court has also directed us to address the respondent’s request for protection under the

Convention Against Torture, so on remand, the parties may present any relevant evidence

in regard to his current eligibility for that relief.

245

application under the standards provided in our decision in Matter of Y-L- and

in this opinion. Accordingly, the respondent’s appeal will be sustained in part,

and the record will be remanded for a new decision on frivolousness and for

further proceedings in regard to the respondent’s eligibility for protection

under the Convention Against Torture.5

 

ORDER: The appeal is sustained in part.

FURTHER ORDER: The record is remanded to the Immigration Judge for

further proceedings consistent with the foregoing decision and for the entry

of a new decision.