UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-1709

MAIMOUNA AMELIE BOUNTOULOUGOU,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: January 26, 2021 Decided: March 26, 2024

Before KING, AGEE, and RICHARDSON, Circuit Judges.

Petition granted by unpublished per curiam opinion.

ON BRIEF: John E. Gallagher, Catonsville, Maryland, for Petitioner. Jeffrey Bossert 

Clark, Acting Assistant Attorney General, Mary Jane Candaux, Assistant Director, Remi 

da Rocha-Afodu, Office of Immigration Litigation, Civil Division, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

The petitioner in these immigration proceedings, Maimouna Amelie 

Bountoulougou, petitions for our review of the order of the Board of Immigration Appeals 

(the “BIA”) dismissing her appeal from the adverse decision of an immigration judge 

(“IJ”). The IJ not only denied Bountoulougou the relief she sought — including asylum

and withholding of removal — but also deemed her permanently ineligible for benefits 

under the Immigration and Nationality Act (the “Act”) on the premise that she had filed a 

“frivolous” asylum application. See 8 U.S.C. § 1158(d)(6).1

 As explained herein, because 

of error in the IJ’s frivolousness analysis, we grant the petition now before us and remand 

for further proceedings.

I.

A.

Bountoulougou is a native and citizen of the West African country of Burkina Faso 

who was admitted to the United States in December 2012 at age 20 as a nonimmigrant 

student. In April 2013, with the assistance of a non-lawyer “preparer,” she submitted to 

the U.S. Citizenship and Immigration Services (“USCIS”) an application for asylum and

withholding of removal, asserting fears that she would be subjected to female genital 

mutilation and forced marriage if she returned to her home country (the “Original 

1 Bountoulougou also unsuccessfully requested protection under the Convention 

Against Torture, but she has since abandoned any claim for that form of relief.

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Application”). In arguable tension with those alleged fears, the Original Application 

indicated that Bountoulougou had voluntarily wed her boyfriend a few days before 

departing for the United States, and it listed the name of a husband (a man named Idrissa 

Kone) who remained in Burkina Faso. The Original Application also stated, inter alia, that

her grandfather and uncles had previously beaten Bountoulougou with a whip because of 

her resistance to forced marriage, and that, following her arrival in the United States, 

Bountoulougou discovered she was pregnant.

During a May 2013 interview at a USCIS asylum office, Bountoulougou confirmed 

that she had wed Idrissa Kone in Burkina Faso just before leaving the country, and she said

that Kone was the father of her then-unborn child. The Department of Homeland Security 

(“DHS”) thereafter initiated removal proceedings against Bountoulougou because she was 

no longer attending school in the United States, Bountoulougou obtained a lawyer, and a 

series of hearings before the IJ ensued. During a December 2014 hearing, 

Bountoulougou’s counsel remarked that Bountoulougou had a “husband” who was “in 

Africa” and “not helping out.” See A.R. 139-40.2

In November 2016, however, Bountoulougou filed an amended application for 

asylum and withholding of removal, stating that she actually was not married (the 

“Amended Application”). The Amended Application also stated that Bountoulougou had 

a son who was born in the United States in August 2013. In support of the Amended 

2 Citations herein to “A.R. __” refer to the contents of the Administrative Record in 

these proceedings.

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Application, Bountoulougou asserted not only fears that she would be subjected to female 

genital mutilation and forced marriage upon her return to Burkina Faso, but also a fear that 

her son would be subjected to an “honor killing” for being born out of wedlock.

During a November 2016 hearing on the Amended Application, Bountoulougou 

testified that she had never had a husband. Bountoulougou explained that she told the 

Original Application’s preparer that she was not married, but the preparer took it upon 

himself to include the statement that Bountoulougou had wed Idrissa Kone in Burkina Faso 

just before departing for the United States. According to Bountoulougou (whose native 

language is French and who could read but not fluently speak English), she asked the 

preparer after reviewing the Original Application why it said that she was married, and the 

preparer responded that he was “used to doing these for people” and that saying 

Bountoulougou was married was “the way it [was] done.” See A.R. 201-02. 

Bountoulougou testified that she did not prepare the Original Application herself because 

she did not know how to do so, and that the inclusion of the statement that Kone was her 

husband was not “done according to [her] free will.” Id. at 202. Further, Bountoulougou 

testified that she did not know Kone, but that she understood Kone to be the preparer’s 

nephew and someone for whom the preparer may have been seeking to obtain an 

immigration benefit. Bountoulougou also clarified that her son’s father was not Kone, but 

another man in Burkina Faso to whom she was not married.

With respect to the May 2013 asylum interview, Bountoulougou expressed 

difficulty recalling what had occurred, explaining that she had been six months pregnant at 

the time and feeling physically unwell, stressed, and afraid. She acknowledged, however, 

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that she had falsely confirmed during the asylum interview that, as stated in the Original 

Application, she was married to Idrissa Kone. In addition to admitting that falsehood, she 

conceded that the Original Application incorrectly stated that her grandfather and uncles 

had beaten her with a whip, though she testified to physical abuse perpetrated by an aunt. 

Indeed, Bountoulougou’s lawyer proffered at the November 2016 hearing that “we’re 

ready to stipulate that [the Original Application] prepared by the non-attorney is rife with 

inconsistencies and incorrectness.” See A.R. 221.

B.

The IJ denied the Amended Application by the adverse decision of April 2017 (the 

“IJ Decision”).

3 In pertinent part, the IJ Decision related that Bountoulougou “admit[ted] 

that [the Original Application] contained false information regarding her marital status,” 

but that she requested the IJ to disregard such false information “because she followed the 

instructions of a preparer . . . who completed and filed the [Original Application] on [her] 

behalf.” See IJ Decision 3. As for the response from DHS, the IJ Decision described 

DHS’s position as being that — because Bountoulougou “submitted the [Original 

Application] with false information and then repeated the alleged falsehoods in her 

interview with the asylum office” — she should be both denied any relief for lack of 

credibility and ruled forever barred from any immigration benefits under the Act for filing 

a frivolous asylum application. Id.

3 The IJ Decision is found at A.R. 63-84.

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The IJ Decision first assessed Bountoulougou’s request for asylum and the issue of 

her credibility. The IJ found that Bountoulougou was “not credible,” citing, inter alia, her 

admission that she “lied” about being married to Idrissa Kone in the Original Application 

and during her asylum interview. See IJ Decision 15. Additionally, the IJ attributed to 

Bountoulougou her lawyer’s remarks during the December 2014 hearing about 

Bountoulougou having a husband who was in Africa. Id. The IJ Decision explained that, 

although Bountoulougou “admitted these falsehoods” by the time of her Amended 

Application, her prior “attempts to deceive immigration officials [were] troubling and 

relevant to the determination of credibility.” Id. at 16. The IJ Decision further ruled that 

Bountoulougou failed to “provide independent evidence of past persecution or a wellfounded fear of future persecution” sufficient “to overcome the adverse credibility 

finding.” Id. at 18-19. The IJ Decision thus concluded that Bountoulougou’s asylum claim

“must be denied.” Id. at 19.

The IJ Decision then turned to the 8 U.S.C. § 1158(d)(6) analysis of whether 

Bountoulougou should be ruled permanently ineligible for immigration benefits under the 

Act for filing a frivolous asylum application. As a precursor to that analysis, the IJ Decision 

observed that “[a]n application is frivolous ‘if any of its material elements is deliberately 

fabricated.’” See IJ Decision 13 (quoting 8 C.F.R. § 1208.20 (2001)). Moreover, the IJ 

Decision related that the IJ “must provide cogent and convincing reasons for determining 

that a preponderance of the evidence supports a frivolousness finding.” Id. (citing In re YL-, 24 I. & N. Dec. 151, 158 (BIA 2007)). The IJ Decision also recognized the BIA’s 

“four-part test” for a frivolousness determination. Id. Under that test,

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(1) the respondent must receive notice of the consequences of filing a 

frivolous application; (2) the [IJ] must make a specific finding that the 

[respondent] knowingly filed a frivolous application; (3) there must be 

sufficient evidence that a material element of the claim was deliberately 

fabricated; and (4) there must be an indication that the respondent has been 

afforded a sufficient opportunity to account for any discrepancies or 

implausible aspects of the claim.

Id. (citing Y-L-, 24 I. & N. Dec. at 155).

The IJ Decision concluded that each element of the four-part test was satisfied in 

Bountoulougou’s case. See IJ Decision 19-20. Of particular relevance herein, the IJ found 

as to the second element that Bountoulougou “knowingly submitted an application 

containing false information,” in that she “conceded that she knowingly submitted an 

asylum application containing false information” — i.e., the Original Application — “and 

continued to perpetrate such falsehoods during her asylum interview.” Id. at 19. The IJ 

Decision elaborated that,

[a]ccording to [Bountoulougou’s November 2016 hearing] testimony, she 

claimed that she was married to Mr. Kone in [the Original Application] and 

in her asylum interview when in fact she was not. Describing her motivation 

for including the fabrication, [Bountoulougou] explained that the preparer of 

[the Original Application] told her that saying she was married was “the way 

it [was] done,” so she followed his instructions. She also conceded that she 

lied in [the Original Application] when she stated that her uncle[s] and 

grandfather beat her.

Id. (sixth alteration in original). As such, the IJ’s finding that Bountoulougou knowingly 

submitted a frivolous application was limited to the Original Application and her 

concessions of falsehoods therein, including the falsehood that she had wed Idrissa Kone 

in Burkina Faso.

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With respect to the third element, the IJ Decision ruled that “the fabrication 

regarding [Bountoulougou’s] marital status is material to her asylum claim.” See IJ 

Decision 20. The IJ Decision’s materiality ruling proceeded as follows:

[T]he fabrication regarding [Bountoulougou’s] marital status is material to 

her asylum claim because it is integral to the analysis of [her] suggested 

particular social group, defined as “uncircumcised Mossi women of Burkina 

Faso who are subjected to forced marriages.” [Bountoulougou] stated that 

she was married on three occasions: in [the Original Application], in her 

asylum interview, and [by way of her lawyer during the December 2014 

hearing]. However, during her [November 2016 hearing] testimony, she 

claimed that she was not married and therefore feared forced marriage and 

[female genital mutilation]. Assuming [Bountoulougou] is married, [the 

Amended Application] is baseless because the false statement regarding her 

marital status is material to her membership in the proposed particular social 

group.

Id. (citation omitted). In other words, the IJ Decision based its materiality ruling on an

“[a]ssum[ption]” — rather than a finding — that Bountoulougou lied in her Amended 

Application when she said she was not married in order to substantiate her alleged fears of

forced marriage and female genital mutilation. Meanwhile, the IJ Decision did not address 

or decide in its frivolousness analysis the materiality of any falsehood that the IJ did find, 

including the falsehood in the Original Application that Bountoulougou had wed Idrissa 

Kone in Burkina Faso.

Following its frivolousness determination against Bountoulougou, the IJ Decision 

considered her request for withholding of removal. Although the IJ Decision recognized 

that “[a] finding of frivolity shall not bar an application for withholding of removal,” see 

IJ Decision 13 (citing 8 C.F.R. § 1208.20 (2001)), the IJ Decision concluded that 

Bountoulougou’s failure to substantiate her asylum claim meant “that she fail[ed] to meet 

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the higher burden of proof for withholding of removal,” id. at 20. Having thereby denied 

the entirety of the Amended Application, the IJ Decision ordered Bountoulougou removed 

to Burkina Faso. Id. at 22. The IJ Decision also reiterated that, because Bountoulougou 

“knowingly submitted an asylum application containing false information,” she “is 

permanently ineligible for any benefits under the Act.” Id. at 21.

C.

The BIA subsequently dismissed Bountoulougou’s appeal from the IJ Decision by 

order of a single BIA member in June 2019 (the “BIA Order”).4

 In so doing, the BIA Order 

first reviewed the IJ’s adverse credibility finding. The BIA Order “discern[ed] no clear 

error in [that] finding,” specifically citing the IJ’s reliance on Bountoulougou’s “admission 

that she lied in [the Original Application and during her asylum interview] by stating that 

she was married to Idrissa Kone when in fact she was not married.” See BIA Order 1. 

Based on that falsehood as well as “other inconsistencies and implausibilities in the 

record,” the BIA Order concluded that the IJ “reasonably doubted” Bountoulougou’s 

veracity. Id. at 1-2.

Next, the BIA Order approved the IJ Decision’s denial of asylum based on 

Bountoulougou’s failure to provide independent evidence sufficient to overcome the 

adverse credibility finding. See BIA Order 2. For similar reasons, the BIA Order also 

approved the IJ Decision’s denial of withholding of removal. Id.

4 The BIA Order is found at A.R. 3-5.

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Finally, the BIA Order addressed the IJ Decision’s ruling that Bountoulougou is 

permanently ineligible for immigration benefits under the Act for filing a frivolous asylum 

application. The BIA Order concluded there was no error in the IJ Decision’s application 

of the four-part test for a frivolousness determination. See BIA Order 2-3. Regarding the 

second element, the BIA Order discerned no clear error in the IJ’s finding that 

Bountoulougou “knowingly made a deliberate fabrication.” Id. at 2. The BIA Decision 

explained this was because Bountoulougou “conceded that she deliberately fabricated in 

[the Original Application] that she is married and perpetuated the fabrication in her asylum 

interview.” Id.

As for the third element of the frivolousness test, the BIA Order summarily stated 

that there was no clear error in the IJ’s finding “that the deliberate fabrication was a material 

element of the asylum application.” See BIA Order 2. The BIA Order elaborated only that 

“[w]e discern no clear error in the [IJ’s] finding[] . . . that the false information is material 

to [Bountoulougou’s] asylum claim,” and that, “[t]hus, the [IJ] provided cogent and 

convincing reasons for finding that a preponderance of the evidence shows that material 

aspects of the claim were deliberately fabricated.” Id. This was the totality of the BIA 

Order’s discussion of the materiality issue.

Bountoulougou timely filed her petition for this Court’s review of the BIA Order 

dismissing her appeal from the IJ Decision, and we possess jurisdiction pursuant to 8 

U.S.C. § 1252(a)(1).

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II.

By her petition for review, Bountoulougou challengesthe adverse credibility finding

and the denials of asylum and withholding of removal that underlie the order that she be 

removed to Burkina Faso. Additionally, Bountoulougou contests the determination that 

she is permanently ineligible for immigration benefits under the Act for filing a frivolous 

asylum application. As previously stated, we are granting the petition and remanding for 

further proceedings on the basis of error in the IJ Decision’s frivolousness analysis. We 

therefore need not — and do not — reach and resolve any other questions, including the 

issues related to the adverse credibility finding and the denials of asylum and withholding 

of removal. Nothing in our decision prevents the agency from revisiting those matters, as 

appropriate, on remand.

A.

As the BIA itself recognized in its 2007 Y-L- decision formulating standards for 

frivolousness determinations, such a determination “is a preemptive determination” with 

“severe consequences,” in that, “once made,” it “forever bars an alien from any benefit 

under the Act.” See In re Y-L-, 24 I. & N. Dec. 151, 157 (BIA 2007). In the words of one 

of our sister courts of appeals, “[a] finding of a frivolous application carries catastrophic 

consequences” and “is the veritable ‘death sentence’ of immigration proceedings.” See 

Yousif v. Lynch, 796 F.3d 622, 627 (6th Cir. 2015) (internal quotation marks omitted).

The power to render a frivolousness determination stems from the asylum statute, 8 

U.S.C. § 1158, which provides in relevant part as follows:

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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) [advising of the consequences of knowingly filing such an 

application], the alien shall be permanently ineligible for any benefits under 

[the Act], effective as of the date of a final determination on such application.

See 8 U.S.C. § 1158(d)(6). At the time of the BIA’s Y-L- decision (as well as the IJ 

Decision herein), the regulation pertaining to frivolousness determinations provided that 

“an asylum application is frivolous if any of its material elements is deliberately 

fabricated.” See 8 C.F.R. § 1208.20 (2001).5

The BIA’s Y-L- decision recognized that — “[g]iven the serious consequences of a 

frivolousness finding” — “the regulation provides a number of procedural safeguards.” 

See 24 I. & N. Dec. at 155. The Y-L- decision specified that

[t]hese include the following requirements: (1) notice to the alien of the 

consequences of filing a frivolous application; (2) a specific finding by the 

[IJ] or the [BIA] 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.

Id. The regulatory requirements delineated in Y-L- are the elements of the “four-part test” 

for a frivolousness determination set forth in the IJ Decision herein. See IJ Decision 13 

(citing and paraphrasing this language of Y-L-).

5 In its current form, the regulation pertaining to frivolousness determinations 

similarly provides that an asylum application filed on or after April 1, 1997, and before 

January 11, 2021, is frivolous if “[a]ny of the material elements in the asylum application 

is deliberately fabricated.” See 8 C.F.R. § 1208.20(a)(1) (2021).

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With respect to the second and third regulatory requirements, the Y-L- decision 

explained that an IJ’s “specific finding that a respondent deliberately fabricated a material 

element of his asylum claim constitutes a finding that he knowingly filed a frivolous 

application.” See 24 I. & N. Dec. at 156. The Y-L- decision also emphasized that “a finding 

of frivolousness does not flow automatically from an adverse credibility determination.” 

Id. (internal quotation marks omitted). Rather, an IJ “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.” Id.

Furthermore, “[b]ecause of the severe consequences that flow from a frivolousness 

finding,” the Y-L- decision recognized that “the preponderance of the evidence must 

support an [IJ’s] finding that the respondent knowingly and deliberately fabricated material 

elements of the claim.” See 24 I. & N. Dec. at 157. Indeed, “the [IJ] 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.” Id. at 

158; see IJ Decision 13 (recognizing the IJ’s obligation under Y-L- to “provide cogent and 

convincing reasons for determining that a preponderance of the evidence supports a 

frivolousness finding”).

Of additional import, the Y-L- decision specified that it is the Government — and 

not the respondent — who bears “the ultimate burden of proof.” See 24 I. & N. Dec. at 

158. And, consistent with the fourth regulatory requirement, “particular attention [must] 

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.” Id. The BIA 

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considers the issue of “whether a fabrication was knowing or deliberate” to be “a factual 

question of intent that is reviewed for clear error”; the issue of “[w]hether a fabrication was 

material” to be a “mixed question[] of fact and law”; and the issue of “[w]hether the [IJ] 

properly applied the regulatory framework” to be a pure “question of law.” Id. at 159.

B.

In these proceedings, as we have explained, the IJ’s finding as to the second 

regulatory requirement that Bountoulougou knowingly submitted a frivolous asylum 

application was limited to the Original Application and her concessions of falsehoods 

therein, including the falsehood that she had wed Idrissa Kone in Burkina Faso just before 

departing for the United States. See IJ Decision 19. Significantly, the IJ Decision did not 

expressly rule that the subsequent Amended Application was also frivolous, nor did the IJ 

state any finding that Bountoulougou lied in the Amended Application by asserting that 

she actually was not married. This reading of the IJ Decision is confirmed by the BIA 

Order, which understood the IJ’s finding that Bountoulougou “knowingly made a 

deliberate fabrication” to be supported by her concession “that she deliberately fabricated 

in [the Original Application] that she is married and perpetuated the fabrication in her

asylum interview.” See BIA Order 2. Moreover, the BIA Order accepted that 

Bountoulougou “lied in [the Original Application and during her asylum interview] by 

stating that she was married to Idrissa Kone when in fact she was not married.” Id. at 1 

(emphasis added). The BIA Order did not contemplate that the IJ Decision found the 

Amended Application to be frivolous in any way.

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Nevertheless, in ruling as to the third regulatory requirement that “the fabrication 

regarding [Bountoulougou’s] marital status is material to her asylum claim,” the IJ 

Decision relied on an “[a]ssum[ption]” that Bountoulougou lied in her Amended 

Application when she said she was not married in order to substantiate her alleged fears of 

forced marriage and female genital mutilation. See IJ Decision 20. That is, the IJ Decision 

reasoned that — “[a]ssuming [Bountoulougou] is married” — the Amended Application 

“is baseless because the false statement regarding her marital status is material to her 

membership in the proposed particular social group [of uncircumcised Mossi women of 

Burkina Faso who are subjected to forced marriages].” Id. The IJ Decision did not address 

or decide in its frivolousness analysis the materiality of any falsehood that the IJ did find, 

including the falsehood in the Original Application that Bountoulougou had wed Idrissa 

Kone in Burkina Faso. And thereafter, the BIA Order summarily approved the IJ 

Decision’s materiality ruling without acknowledging and contending with the reasoning 

stated — and not stated — for that ruling. See BIA Order 2.

In the briefs submitted to this Court, Bountoulougou challenges the IJ Decision’s 

materiality ruling and argues that the IJ could not have properly found that the Original 

Application’s fabrication of the marriage to Idrissa Kone was material because that 

fabrication “actually hurts” Bountoulougou’s asylum claim. See Br. of Pet’r 13. 

According to Bountoulougou, “[b]y having a spouse listed [in the Original Application, 

she was] essentially foreclosing the portion of her claim in which she feared being forced 

to marry a man by her family.” Id. at 15. As such, Bountoulougou contends that — if the 

IJ had deemed the Original Application’s fabrication of the marriage to be material — that 

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would have been a finding that was “clearly erroneous.” Id. at 13-14. For support, 

Bountoulougou invokes authorities suggesting that a fabrication must be helpful to an 

asylum claim in order to be material. See id. at 14 (citing, e.g., In re Bosuego, 17 I. & N. 

Dec. 125, 130 (BIA 1980), explaining that a misrepresentation is material for purposes of 

an inadmissibility determination under 8 U.S.C. § 1182 “if either (1) the alien is excludable 

on the true facts or (2) the misrepresentation tends to shut off a line of inquiry which is 

relevant to the alien’s eligibility and which might well have resulted in a proper 

determination that he be excluded”); see also Y-L-, 24 I. & N. Dec. at 159 (describing 

materiality in the frivolousness analysis as a “mixed question[] of fact and law”).

The Government counters by insisting that — notwithstanding the IJ Decision’s 

language that it merely assumed that Bountoulougou lied about not being married in the 

Amended Application — the IJ Decision actually found both the Original Application and 

the Amended Application to be frivolous. See Br. of Resp’t 50 (asserting that the IJ 

Decision’s frivolousness “analysis rested on the reasoning that [the Amended Application] 

was also frivolous and that [Bountoulougou] amended [the Original Application] to fit her 

newly-proffered particular social group of ‘uncircumcised Mossi women of Burkina Faso 

who are subjected to forced marriages’”). The Government premises its theory on an 

implicit frivolousness finding and argues that — because the IJ found that Bountoulougou 

generally “was not credible” — the IJ “was not required to credit any of her statements” 

and thus “was eminently justified in concluding that [the Amended Application] was also 

fabricated.” Id. at 51. As the Government would have it, although the IJ Decision’s 

materiality ruling pertained only to the Amended Application, the frivolousness analysis is 

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unassailable because the IJ implicitly and properly found, based on Bountoulougou’s 

general lack of credibility, that the Amended Application was frivolous for falsely stating

that Bountoulougou was not married.

C.

We are constrained to conclude that the IJ Decision’s frivolousness determination 

was erroneous as a matter of law in that the IJ failed to properly apply the agency’s own 

regulatory framework. See Y-L-, 24 I. & N. Dec. at 159 (designating the issue of 

“[w]hether the [IJ] properly applied the regulatory framework” as “a question of law”); see 

also Yousif, 796 F.3d at 628 (explaining that “[w]hen reviewing a frivolousness finding, 

we review questions of law de novo”). In particular, the IJ Decision failed to make the 

required “specific finding that [Bountoulougou] deliberately fabricated a material element 

of [her] asylum claim.” See Y-L-, 24 I. & N. Dec. at 156. Under the regulatory framework, 

the IJ Decision should have specifically found both a deliberate fabrication and the 

materiality of that same fabrication. Instead, the IJ Decision specifically found one 

deliberate fabrication (the Original Application’s statement that Bountoulougou was 

married to Idrissa Kone) but the materiality of another (the Amended Application’s 

statement that Bountoulougou was not married at all). Moreover, the IJ Decision merely 

“[a]ssum[ed]” the deliberate fabrication in the Amended Application, see IJ Decision 20, 

and it made no finding as to the materiality of the deliberate fabrication in the Original 

Application.

In therefore concluding that the IJ Decision’s frivolousness determination was 

erroneous as a matter of law, we are not resolving whether we agree with Bountoulougou’s 

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contention that the IJ could not have properly found the deliberate fabrication in the 

Original Application to be material. That argument presents a hypothetical issue —

whether the IJ would have erred as either a pure question of fact or a mixed question of 

fact and law if he had ruled that the Original Application’s fabrication was material — that 

is not properly before us.

We do, however, reject the Government’s theory that — notwithstanding the IJ 

Decision’s plain language “[a]ssuming” the Amended Application’s deliberate fabrication, 

see IJ Decision 20 — the IJ implicitly and properly found, based on Bountoulougou’s 

general lack of credibility, that Bountoulougou lied in the Amended Application about not 

being married. The Government’s theory is palpably inconsistent with the BIA’s Y-Ldecision, in that an implied finding of a deliberate fabrication cannot be said to qualify as 

the requisite “specific finding,” nor can a deliberate fabrication finding “flow automatically 

from an adverse credibility determination.” See 24 I. & N. Dec. at 156 (internal quotation 

marks omitted).

The notion that the IJ somehow properly found that Bountoulougou lied in the 

Amended Application about her marital status is further contradicted by Y-L-’s recognition 

of the following: an IJ’s obligations to discuss the evidence supporting a deliberate 

fabrication finding and to “provide cogent and convincing reasons for finding [a deliberate 

fabrication] by a preponderance of the evidence”; the Government’s burden to prove a 

deliberate fabrication; and the opportunity that must be accorded to the respondent “to 

account for any discrepancies or implausible aspects of the claim relied on in the 

frivolousness finding.” See 24 I. & N. Dec. at 156-58. Here, the IJ Decision neither 

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discussed evidence tending to show that Bountoulougou actually was married when she 

stated in the Amended Application that she was not, nor provided any reason for finding 

such a deliberate fabrication by a preponderance of the evidence. The IJ Decision also did

not mention any effort by the Government to prove that Bountoulougou lied about her 

marital status in the Amended Application. See IJ Decision 3 (describing the 

Government’s position as being that Bountoulougou lied in the Original Application 

alone). And although it is undisputed that Bountoulougou was accorded a sufficient 

opportunity to account for the admitted falsehoods in the Original Application, there is no 

indication the same is true with respect to any alleged falsehood about her marital status in 

the Amended Application.

At bottom, the Government’s theory does not save the IJ Decision from the 

conclusion that the IJ failed to properly apply the controlling regulatory framework. 

Simply put, before being subjected to the harsh consequences of the IJ Decision’s 

frivolousness determination, Bountoulougou was entitled to procedural safeguards that she

was not afforded. Cf. Ndibu v. Lynch, 823 F.3d 229, 236 (4th Cir. 2016) (denying the 

petition for review where, contrary to the petitioner’s arguments, he received satisfactory 

notice of the consequences of filing a frivolous asylum application); Y-L-, 24 I. & N. Dec. 

at 162 (sustaining the respondent’s appeal from a frivolousness finding that did “not meet 

the regulatory requirement that the respondent be afforded a sufficient opportunity to 

explain perceived discrepancies or implausibilities”).

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III.

Pursuant to the foregoing, we grant Bountoulougou’s petition for review and 

remand for such other and further proceedings as may be appropriate.

PETITION GRANTED

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