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494 

Matter of M-M-A-, Respondent

Decided March 11, 2022

U.S. Department of Justice 

Executive Office for Immigration Review 

Board of Immigration Appeals

When the Department of Homeland Security raises the mandatory bar for filing a 

frivolous asylum application under section 208(d)(6) of the Immigration and Nationality 

Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of 

fact and conclusions of law on whether the requirements for a frivolousness determination 

under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met. 

FOR THE RESPONDENT: Elias Z. Shamieh, Esquire, San Francisco, California 

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jennifer L. Castro, Assistant 

Chief Counsel 

BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. 

Dissenting Opinion: GREER, Appellate Immigration Judge. 

WILSON, Appellate Immigration Judge: 

 In a decision dated June 26, 2018, the Immigration Judge granted the 

respondent’s application for adjustment of status under section 245(a) of the 

Immigration and Nationality Act, 8 U.S.C. § 1255(a) (2018), and his 

application for a waiver of inadmissibility under section 212(i) of the Act, 

8 U.S.C. § 1182(i) (2018). The Department of Homeland Security (“DHS”) 

has appealed from this decision, arguing that the respondent filed a frivolous 

asylum application and was therefore barred from the requested relief. See

section 208(d)(6) of the Act, 8 U.S.C. § 1158(d)(6) (2018). The appeal will 

be sustained, the Immigration Judge’s decision vacated, and the record 

remanded. 

I. FACTUAL AND PROCEDURAL HISTORY 

 The following facts are undisputed. The respondent was admitted to the 

United States in 2007. In August 2010, he filed an affirmative asylum 

application with United States Citizenship and Immigration Services 

(“USCIS”). In his application, the respondent claimed that his father was a 

founder of, and held a leadership position in, the Southern Movement in 

Yemen, which called for the secession of South Yemen. He stated in his 
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application that he and his brother were also members of this group and that 

he had been a member since 2003. The respondent claimed that his father 

was being held in prison in Yemen because of his involvement in this group 

and that arrest warrants had been issued for the respondent and his brother. 

He further claimed that if he entered Yemen, he would immediately be 

arrested and imprisoned and that he would likely be tortured. The respondent 

signed the application, swearing to the truth of its contents. He attached a 

declaration repeating this same claim, as well as a document purporting to be 

a Yemeni arrest warrant. He attended two administrative interviews with 

asylum officers and at both interviews, he swore to tell the truth. The 

respondent received notice of the consequences of filing a frivolous asylum 

application and acknowledged that if he filed a frivolous asylum application, 

he could be “permanently ineligible for any benefits” under the Act. Section 

208(d)(4)(A), (6) of the Act. USCIS denied the respondent’s application and 

placed him in removal proceedings. 

 At the Immigration Court, the respondent sought adjustment of status 

based on his marriage to a United States citizen. After the DHS stated that 

the respondent might be barred from adjustment of status because his asylum 

application suggests he provided material support to a terrorist group, the 

respondent withdrew his asylum application. In a filing to the Immigration 

Court, he stated that he had poor English skills when he filed his asylum 

application and thus did not know how to properly explain what happened to 

him in Yemen. He further claimed that he mischaracterized certain 

information regarding his involvement with the Southern Movement in 

Yemen and wished to retract the information. Acknowledging that these 

misrepresentations rendered him inadmissible, he filed a Form I-601, 

Application for Waiver of Grounds of Inadmissibility, seeking to waive his 

inadmissibility under section 212(a)(6)(C)(i) of the Act for fraud or 

misrepresentation of a material fact. 

 At a hearing before the Immigration Court, the respondent testified that 

his written declaration and his testimony at his asylum interviews were false. 

He testified that neither he nor his family were members of the Southern 

Movement, his father was never imprisoned in Yemen, and an arrest warrant 

was never issued for the respondent. He also admitted that he submitted a 

false Arabic language arrest warrant. He testified that although his friends 

completed his asylum application, he lied to the asylum officers under oath. 

He also testified that his work permit was going to expire and he was told 

that filing the asylum application would fix the situation. 

 The DHS asked the Immigration Judge to find that the respondent filed a 

frivolous asylum application. The Immigration Judge found that the 

respondent’s asylum claim “hinged upon this false information,” which the 

respondent admitted was untrue and that the misrepresentations were “both 
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material and willful.” Based on the respondent’s fraudulent 

misrepresentations, the Immigration Judge found that he was inadmissible 

under section 212(a)(6)(C)(i) of the Act, but eligible for a waiver of 

inadmissibility under section 212(i) of the Act. 

 Despite finding that the respondent admitted that his asylum application 

was fraudulent, the Immigration Judge held that she was not required to find 

that the respondent’s asylum application was frivolous or that the respondent 

was permanently barred from relief under section 208(d)(6) of the Act. The 

Immigration Judge declined to enter a frivolousness finding. Instead, she 

determined that the respondent merited a waiver of inadmissibility and 

granted his application for adjustment of status. 

 On appeal, the DHS argues that although it properly raised the issue of 

the mandatory bar to relief based on a frivolous asylum application under 

section 208(d)(6) of the Act, the Immigration Judge ignored the issue and did 

not apply the analytical framework set forth in Matter of Y-L-, 24 I&N Dec. 

151, 155–60 (BIA 2007). It further argues that when it raises the 

frivolousness issue, an Immigration Judge is required to make the relevant 

findings of facts and conclusions of law regarding whether the mandatory 

bar to relief applies before considering a respondent’s eligibility for relief. 

II. ANALYSIS 

 The issue before this Board is whether, when the DHS alleges that an 

applicant is ineligible for relief based on a frivolous asylum application, the 

Immigration Judge is required to make predicate findings of fact and 

conclusions of law to determine whether the requirements for a frivolous 

asylum application have been satisfied. We review this legal issue de novo. 

See 8 C.F.R. § 1003.1(d)(3)(ii) (2021). 

 Section 208(d)(6) of the Act provides: 

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) 

[of the consequences of such an application], the alien shall be permanently 

ineligible for any benefits under this Act, effective as of the date of a final 

determination on such application. 

 The implementing regulation further provides: 

For applications filed on or after April 1, 1997, an applicant is subject to the 

provisions of section 208(d)(6) of the Act only if a final order by an immigration 

judge or the Board of Immigration Appeals specifically finds that the alien 

knowingly filed a frivolous asylum application. For purposes of this section, an 

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

fabricated. Such finding shall only be made if the immigration judge or the Board is 
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satisfied that the applicant, during the course of the proceedings, has had sufficient 

opportunity to account for any discrepancies or implausible aspects of the claim. For 

purposes of this section, a finding that an alien filed a frivolous asylum application 

shall not preclude the alien from seeking withholding of removal. 

8 C.F.R. § 1208.20 (2020). 

 A frivolousness finding “is a preemptive determination which, once 

made, forever bars an alien from any benefit under the Act.” Matter of Y-L-, 

24 I&N Dec. at 157. Given the serious consequences of a frivolousness 

finding, specific requirements must be met before an Immigration Judge or 

the Board can enter such a determination. Id. at 155. Among these is a 

specific finding that a respondent “knowingly and deliberately fabricated 

material elements of the claim.” Id. at 156–57; see 8 C.F.R. § 1208.20. 

Either an Immigration Judge or the DHS can raise the issue of a frivolous 

asylum application. See Matter of Y-L-, 24 I&N Dec. at 159–60. However, 

an “Immigration Judge is not required to evaluate whether an application is 

frivolous if the [DHS] does not raise the issue.” Matter of X-M-C-, 25 I&N 

Dec. 322, 324 n.1 (BIA 2010). 

 Where, as here, the DHS argues that the mandatory bar for filing a 

frivolous asylum application applies, the Immigration Judge errs in not 

addressing the issue and making sufficient factual findings on whether the 

requirements for a frivolousness determination have been met. Immigration 

Judges must make sufficient findings of fact and conclusions of law on issues 

raised before them to ensure the Board can conduct effective appellate 

review. See Matter of A-P-, 22 I&N Dec. 468, 474 (BIA 1999) (stating that 

the Immigration Judge’s decision must provide the Board with adequate 

means of performing its “primary appellate function of reviewing the bases 

stated for the Immigration Judge’s decision in light of the arguments 

advanced on appeal”). 

 During removal proceedings, when the DHS raises an issue of statutory 

eligibility for relief, an Immigration Judge may not grant relief without 

addressing that issue. “We think it goes without saying that [Immigration 

Judges] . . . are not free to ignore [potentially dispositive] arguments raised 

[before them].” Sanchez Rosales v. Barr, 980 F.3d 716, 719 (9th Cir. 2020) 

(quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)); cf. INS 

v. Bagamasbad, 429 U.S. 24, 25–26 (1976) (holding that Immigration Judges 

are not required to address issues that are not dispositive). In fact, the United 

States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case 

arises, has stated that Immigration Judges and the Board err when we ignore 

potentially dispositive arguments or evidence presented. See Vitug v. Holder, 

723 F.3d 1056, 1064 (9th Cir. 2013); see also Cole v. Holder, 659 F.3d 762, 

772 (9th Cir. 2011) (“[W]here potentially dispositive testimony and 
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documentary evidence is submitted, [Immigration Judges and the Board] 

must give reasoned consideration to that evidence.”). 

 The requirement that Immigration Judges address all issues of statutory 

eligibility before granting relief is supported throughout various sections of 

the Act and the regulations. For example, the Board has previously held that 

under 8 C.F.R. § 1240.8(d) (2021), “where the record contains some 

evidence from which a reasonable factfinder could conclude that one or more 

grounds for mandatory denial of [an] application may apply,” an applicant 

cannot be granted relief unless he or she demonstrates that the ground does 

not apply. Matter of M-B-C-, 27 I&N Dec. 31, 37 (BIA 2017). Although the 

respondent does not bear the burden of proving that the bar to relief based on 

a frivolous asylum application does not apply, Matter of Y-L-, 24 I&N Dec. 

at 157, the logic behind 8 C.F.R § 1240.8(d) is equally applicable to the 

mandatory bar for frivolous asylum applications: If the record contains 

sufficient evidence indicating that a respondent may be barred from relief 

based on a frivolous asylum application and the DHS raises the issue, the 

Immigration Judge cannot grant relief without determining whether the 

requirements for a frivolousness finding have been met. 

 Likewise, section 208(b)(2)(A) of the Act and the implementing 

regulations treat bars to asylum in a similar manner and thus support the 

conclusion that Immigration Judges must address all issues of statutory 

eligibility. For example, section 208(b)(2)(A) sets forth certain instances 

where an individual who would otherwise qualify for asylum cannot be 

granted relief. The regulation at 8 C.F.R. § 1208.13(c) describes these 

limitations as “mandatory bars” to asylum eligibility. The asylum 

regulations provide that “[u]nless otherwise prohibited in § 1208.13(c), an 

immigration judge may grant or deny asylum in the exercise of discretion to 

an applicant who qualifies as a refugee under section 101(a)(42) of the Act.” 

8 C.F.R. § 1208.14(a) (2021) (emphasis added). Pursuant to these 

regulations, an Immigration Judge may not grant asylum where a mandatory 

bar applies. See, e.g., Dawson v. Garland, 998 F.3d 876, 879 n.1 (9th Cir. 

2021) (recognizing that applicants convicted of a particularly serious crime 

are subject to mandatory denial of asylum and withholding of removal); Ali 

v. Ashcroft, 394 F.3d 780, 789 (9th Cir. 2005) (noting that a respondent is 

mandatorily ineligible for asylum if he or she firmly resettles prior to entering 

the United States). 

 Similarly, other regulations provide that an Immigration Judge must 

consider issues of statutory eligibility raised by the applicant. When an 

applicant files an application for asylum, an Immigration Judge is required 

to consider the applicant’s statutory eligibility for withholding of removal. 

See 8 C.F.R. § 1208.3(b) (2020); see also Matter of Gharadaghi, 19 I&N 

Dec. 311, 316 (BIA 1985) (noting that the consideration of withholding of 
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removal “is mandatory” and that an Immigration Judge cannot “ignore an 

application for withholding of [removal]”). For all of these reasons, we 

conclude that when the DHS raises the mandatory bar for filing a frivolous 

asylum application, the Immigration Judge cannot ignore the issue raised and 

must make sufficient findings of fact and conclusions of law on whether the 

requirements for a frivolousness determination under Matter of Y-L-, 24 I&N 

Dec. at 155–60, have been met. 

 The dissent argues that the Immigration Judge has the discretion not to 

make a frivolousness finding. We do not find it necessary in this case to 

consider whether an Immigration Judge has discretion not to enter a 

frivolousness finding when the requirements under Matter of Y-L- have been 

satisfied. However, an Immigration Judge has to make sufficient findings of 

fact and conclusions of law to allow for review by the Board whenever an 

issue is raised by the DHS. This includes, as in all discretionary analyses, 

weighing all of the positive equities against the negative factors in a 

particular case.1

 Although the Immigration Judge stated that there were 

“significant equities” in this case, she did not meaningfully analyze all of the 

negative factors. In short, she did not explain why, given the extensive and 

repeated misrepresentations, the belated recantation of the fraudulent claim, 

and the submission of fraudulent documents, the congressionally mandated 

bar to future relief should not be applied to this respondent. 

 The respondent relies on Mei Juan Zheng v. Holder, 672 F.3d 178 (2d Cir. 

2012), to argue that the Immigration Judge had discretion not to find that he 

filed a frivolous asylum application. In Mei Juan Zheng, the Second Circuit 

held that an Immigration Judge has discretion “whether to investigate if the 

preconditions for entering . . . a [frivolousness] finding have been met” and 

to not enter a frivolousness finding even after she determines that “an 

application contains a material misstatement and that the applicant was 

adequately warned.” 672 F.3d at 186. 

 However, because the case before us arises in the jurisdiction of the Ninth 

Circuit, Mei Juan Zheng is not controlling. See Matter of Anselmo, 20 I&N 

Dec. 25, 31 (BIA 1989) (“We are not required to accept an adverse 

determination by one circuit court of appeals as binding throughout the 

United States.”). The Ninth Circuit has recognized that the frivolous asylum 

bar is a mandatory and permanent bar to relief and is intended “to prevent 

[applicants] from lying to the United States government in order to obtain 

benefits under the [Act].” Chen v. Mukasey, 527 F.3d 935, 940 (9th Cir. 

2008). We are unaware of any precedent case law from the Ninth Circuit 

1

 If an Immigration Judge makes a discretionary determination regarding a frivolousness 

finding, it would be subject to de novo review by the Board. See 8 C.F.R. 

§ 1003.1(d)(3)(ii). 
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holding that an Immigration Judge can decline to make findings regarding 

this mandatory bar when the issue is raised by the DHS. 

 Moreover, in Mei Juan Zheng, the Second Circuit emphasized that the 

Board had not issued a published decision on the issue. 672 F.3d at 186. It 

noted that had we entered a published, precedential decision—as we do 

now—that decision would be accorded additional deference. Id.

IV. APPLICATION TO THE RESPONDENT’S CASE 

 The respondent, who is college-educated and speaks English, admitted 

before the Immigration Judge that he filed a fraudulent asylum application 

and written declaration and lied under oath about his asylum claim at his 

administrative interviews. He admitted that, contrary to his asylum claim, he 

and his family were not members of the Southern Movement in Yemen and 

that his father had not been imprisoned because of his membership in the 

group. He further admitted that he submitted a false Arabic language arrest 

warrant. The respondent only admitted the falsity of his asylum claim after 

counsel for the DHS stated that if the facts stated in the respondent’s asylum 

application were true, he may be barred from adjustment of status for having 

provided material support to a terrorist group in Yemen. See section 245(a) 

of the Act (requiring an applicant for adjustment of status to be admissible to 

the United States); see also section 212(a)(3)(B)(i)(I) of the Act (stating that 

a respondent who has engaged in terrorist activity, including having provided 

material support to a terrorist organization, is inadmissible). 

 As the record demonstrates, this is not a case in which the respondent 

simply lacked credibility based on inconsistent testimony.2

 The Immigration 

Judge found that the respondent’s asylum claim hinged upon the information 

he admitted was untrue and that the misrepresentations were both material 

and willful. 

2 It is a well settled principle of asylum law that an adverse credibility determination does 

not necessarily warrant a finding that an applicant filed a frivolous asylum application. See 

Yan Liu v. Holder, 640 F.3d 918, 930 (9th Cir. 2011) (noting that discrepancies supporting 

an adverse credibility finding do not necessarily demonstrate that the respondent filed a 

frivolous asylum application); Fernandes v. Holder, 619 F.3d 1069, 1076 (9th Cir. 2010) 

(“Our sister circuits have observed that ‘an adverse credibility determination alone cannot 

support a finding of frivolousness.’”(quoting Ahir v. Mukasey, 527 F.3d 912, 918 (9th Cir. 

2008) (citing cases))); Matter of X-M-C-, 25 I&N Dec. at 324 n.1 (“[T]he fact that an 

adverse credibility determination is made does not in itself require the Immigration Judge 

to make a separate determination on whether the application was frivolous.”); Matter of 

B-Y-, 25 I&N Dec. 236, 239–40 (BIA 2010) (addressing the relationship between an 

adverse credibility finding and a frivolousness finding). 
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 Under the implementing regulation and our prior case law, “an asylum 

application is frivolous if any of its material elements is deliberately 

fabricated,” and “the [I]mmigration [J]udge or the Board is satisfied that the 

applicant, during the course of the proceedings, has had sufficient 

opportunity to account for any discrepancies or implausible aspects of the 

claim.” 8 C.F.R. § 1208.20; accord Matter of Y-L-, 24 I&N Dec at 155. 

While this Board has a limited fact-finding function, we have authority 

pursuant to 8 C.F.R. § 1208.20, to make a determination that the respondent 

filed a frivolous asylum application. The Ninth Circuit has acknowledged 

the Board’s authority set forth in this regulation. See Fernandes, 619 F.3d at 

1076; Khadka v. Holder, 618 F.3d 996, 1001–02 (9th Cir. 2010); Ahir, 527 

F.3d at 916–17. 

 However, we have also held that given the serious consequences of a 

frivolousness determination, before making such a finding the Immigration 

Judge should: (1) provide notice to the respondent of the consequences of 

filing a frivolous application; (2) make a specific finding that the respondent 

knowingly filed a frivolous application; (3) find sufficient evidence in the 

record to support the finding that a material element of the asylum 

application was deliberately fabricated; and (4) provide the respondent 

sufficient opportunity to account for any discrepancies in his claim. Matter 

of Y-L-, 24 I&N Dec. at 155; see also Ahir, 527 F.3d at 917 (adopting the 

Board’s analytical framework in Matter of Y-L-). The Immigration Judge did 

not determine whether the Matter of Y-L- factors were satisfied in this case. 

Therefore, we will remand the record to the Immigration Judge to apply the 

framework in Matter of Y-L-. If the Immigration Judge determines that these 

requirements have been satisfied, she must make the necessary findings of 

fact and conclusions of law and determine whether the mandatory bar 

to relief applies in this case. Accordingly, the following orders will be 

entered. 

ORDER: The DHS’s appeal is sustained and the Immigration Judge’s 

decision is vacated. 

FURTHER ORDER: The record is remanded to the Immigration 

Judge for further proceedings consistent with this opinion and the entry of a 

new decision.

DISSENTING OPINION: Anne J. Greer, Appellate Immigration Judge 

 I respectfully dissent. I conclude that Immigration Judges retain 

discretion over whether to initiate a frivolousness inquiry under Matter of 

Y-L-, 24 I&N Dec. 151, 155–60 (BIA 2007). In my view, an Immigration 

Judge is not required to engage in the frivolousness analysis, but may elect 
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to do so based on her independent judgment. The majority has created an 

unwarranted expansion of the application of the Immigration and Nationality 

Act’s frivolousness provision, which is contrary to statute, regulations, and 

case law. I would uphold the Immigration Judge’s judgment in this case and 

dismiss the appeal. By not doing so, we disable Immigration Judges from 

exercising their discretion in this regard. 

I. FACTUAL AND PROCEDURAL HISTORY 

 The respondent filed an asylum application containing false information 

with the United States Citizenship and Immigration Services (“USCIS”) in 

August 2010. He appeared for two interviews before the asylum office. The 

asylum officer denied the respondent’s application based on a lack of 

credibility and referred the case to the Immigration Court. The notice to 

appear was filed with the Immigration Court in July 2011. In removal 

proceedings during a master calendar hearing in November 2012, the 

respondent’s counsel stated that the respondent would be seeking adjustment 

of status based on an approved family-based immigrant visa petition filed by 

his United States citizen wife. 

 At a reconvened master calendar hearing in June 2015, the Department 

of Homeland Security (“DHS”) raised concerns about misrepresentations in 

the asylum application. The DHS observed that these concerns were clearly 

relevant to the respondent’s admissibility for purposes of statutory eligibility 

to adjust his status and potentially relevant to a frivolousness finding. During 

his merits hearing on October 31, 2017, the respondent elected to proceed 

only with his application for adjustment of status and testified as to the falsity 

of his asylum application, which he had withdrawn. 

 At the conclusion of the hearing, the Immigration Judge set a new hearing 

date. She informed the parties that she would either issue a written decision 

addressing the respondent’s adjustment of status application on the merits or 

reconvene the parties if she elected to undertake the inquiry for frivolousness, 

the result of which could render the respondent ineligible for adjustment of 

status. 

 On June 26, 2018, the Immigration Judge issued her written decision 

concluding that the respondent was inadmissible under section 

212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2018), for the 

material misrepresentations he had made in his asylum application. The 

Immigration Judge granted the respondent’s applications for a waiver of 

inadmissibility under section 212(i) of the Act and adjustment of status. The 

Immigration Judge also concluded that she had discretion over whether to 

make a frivolousness determination and declined to do so. 
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II. ISSUE 

 The DHS does not challenge the Immigration Judge’s grant of the section 

212(i) waiver, including her determination of extreme hardship to the 

respondent’s spouse and her conclusion that the respondent merits this 

waiver in the exercise of discretion. The DHS also does not dispute the 

Immigration Judge’s reasons for not initiating the frivolousness inquiry. On 

appeal, the only contested issue is whether the Immigration Judge, when 

requested by the DHS, must make a frivolousness determination where the 

respondent has made a material misrepresentation in applying for asylum.1

 

That, therefore, is the issue at hand. 

III. GOVERNING STATUTORY AND REGULATORY 

PROVISIONS 

 I do not read section 208(d)(6) of the Act, 8 U.S.C. § 1158(d)(6) (2018), 

or the implementing regulations as mandating an Immigration Judge to 

initiate a frivolousness inquiry. Section 208(d)(6) of the Act provides: 

If the Attorney General determines that an alien has knowingly made a frivolous 

application for asylum and the alien has received the notice under paragraph (4)(A), 

the alien shall be permanently ineligible for any benefits under this chapter, effective 

as of the date of a final determination on such application. 

 The statutory language relates the command “shall” to the consequences 

of making a frivolousness finding. In other words, “[i]f” the Immigration 

Judge determines a frivolous application has been filed, certain consequences 

“shall” follow. Section 208(d)(6) of the Act. These consequences are that 

the noncitizen is “permanently ineligible for any benefits under this Act.” Id. 

Read in this way, the term “frivolous application” encompasses an evaluation 

resulting in a conclusion that applies to benefits under the Act. The 

regulations, which provide that “an applicant is subject to the provisions of 

section 208(d)(6) of the Act only if a final order by an immigration judge or 

the Board of Immigration Appeals specifically finds that the alien knowingly 

filed a frivolous asylum application,” support this view. 8 C.F.R. §§ 208.20, 

1208.20 (2020). The regulations similarly do not state that an Immigration 

1 The majority treats this as if the DHS challenges the reasons that formed the basis for 

the Immigration Judge’s determination not to proceed with the frivolousness inquiry. That 

argument has been waived by the DHS. See Matter of Z-Z-O-, 26 I&N Dec. 586, 586 n.1 

(BIA 2015) (explaining that an issue not meaningfully challenged on appeal will be deemed 

waived); cf. Osmani v. Garland, 24 F.4th 617, 621–22 (7th Cir. 2022) (holding that the 

Board committed legal error in considering arguments raised by the DHS for the first time 

on appeal). 
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Judge must make the determination, but rather that consequences result from 

the determination once it is made. In the absence of a statutory or regulatory 

mandate, there is no reason to impose one and doing so results in severe 

consequences. 

 

IV. CASE LAW 

 This reading is consistent with the law reflecting a distinction between 

adverse credibility and frivolousness. Generally, an Immigration Judge will 

elect to conduct a frivolousness inquiry after she is presented with an asylum 

claim in immigration court that is deemed not credible and therefore denied 

for failure to meet the burden of proof. However, Immigration Judges do not 

necessarily apply the frivolousness standard where the claim fails for lack of 

credibility. It is axiomatic that “a finding of frivolousness does not flow 

automatically from an adverse credibility determination.” Yousif v. Lynch, 

796 F.3d 622, 629 (6th Cir. 2015) (citation omitted); see also Matter of Y-L-, 

24 I&N at 156 (BIA 2007) (citing cases for the proposition that an adverse 

credibility finding does not automatically equate to a frivolousness 

determination). 

 In determining that the adjudicator retains discretion to engage in the 

frivolousness inquiry as a threshold issue, the United States Court of Appeals 

for the Second Circuit has recognized that an Immigration Judge may 

determine, based on the particular circumstances in a case, that an adverse 

credibility finding does not warrant a frivolousness inquiry. Mei Juan Zheng 

v. Holder, 672 F.3d 178, 186 (2d Cir. 2012) (stating that Immigration Judges 

are not compelled “to engage in a frivolousness inquiry anytime they suspect 

that the conditions for entering such a finding are present”). 

 In my view, this is a classic question of judgment retained by the 

adjudicator. See Matter of Avetisyan, 25 I&N Dec. 688, 691 (BIA 2012) 

(discussing the need for Immigration Judges and Appellate Immigration 

Judges to “exercise independent judgment and discretion in considering and 

determining the cases coming before them”), overruled by Matter of CastroTum, 27 I&N Dec. 271 (A.G. 2018), overruled by Matter of Cruz-Valdez, 

28 I&N Dec. 326 (A.G. 2021). 

 In addition to creating confusion about whether any material 

misrepresentation must lead to a frivolousness determination, the majority’s 

analysis conflates frivolousness determinations with mandatory bars to 

asylum under sections 208(b)(2)(A)(i) through (vi) of the Act, which are 

specifically referenced under the regulations at 8 C.F.R. §1208.13(c)(1) 

(2020). Notably, the frivolousness provision is separate from these bars. 

Moreover, we are not addressing asylum eligibility in this case. 
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505 

 In a similar vein, we have recognized frivolousness determinations as 

distinct from the mandatory bars described under the regulations at 8 C.F.R. 

§ 1240.8(d) (2021). In Matter of Y-L-, 24 I&N Dec. at 157, we specified that 

“[a] frivolousness finding, unlike a determination in regard to eligibility for 

a particular form of relief governed by 8 C.F.R. § 1240.8(d), is a preemptive 

determination which, once made, forever bars an alien from any benefit 

under the Act.” In other words, the frivolousness determination generally 

follows after an Immigration Judge has found a noncitizen ineligible for 

asylum based on an adverse credibility finding. The frivolousness 

determination can also be made when the asylum application is withdrawn, 

as occurred here, and the noncitizen is questioned about the contents of the 

withdrawn application. See Matter of X-M-C-, 25 I&N Dec. 322, 325–26 

(BIA 2010). Thereafter, the noncitizen is ineligible for other benefits under 

the Act, including adjustment of status, the relevant form of relief in this case. 

Section 208(d)(6) is a unique statutory provision with far-reaching 

implications, including its extension to applications outside the asylum 

context, and is different from provisions which are commonly recognized as 

statutory asylum bars. 

 I recognize the concerns about rampant fraud in immigration 

proceedings, which led to the enactment of the provisions for frivolous 

asylum applications under section 208(d)(6) of the Act. And, there is no 

controversy surrounding the nature and extent of the misrepresentations the 

respondent made in his asylum application in this case, as vividly described 

by the majority. There is also no dispute that a withdrawn asylum application 

can serve as the basis for a frivolousness determination. See, e.g.,

Kulakchyan v. Holder, 730 F.3d 993, 996 (9th Cir. 2013); Matter of X-M-C-,

25 I&N Dec. at 325–27. 

 At the same time, the consequences that follow from a frivolousness 

determination are harsh and must stand up to scrutiny on judicial review. 

See, e.g., Luciana v. Att’y Gen. of U.S., 502 F.3d 273, 284 (3d Cir. 2007) 

(granting the petition for review, finding that the application for asylum was 

not frivolous, and stating that “[b]ecause modern jurisprudence recognizes 

the importance of results, it would seem that the various [Immigration 

Judges] and the BIA should at least consider the consequences of the 

draconian penalty attached to a finding that the application for asylum is 

frivolous”). The caution that we be conscious of these consequences reflects 

that we retain discretion to impose them. 

 

V. CONCLUSION 

 In my view, when an Immigration Judge elects to undertake the analysis 

set forth in our precedent under Matter of Y-L-, either independently or at the 
Cite as: 28 I&N Dec. 494 (BIA 2022) Interim Decision #4039 

506 

request of the DHS, and determines that the application is frivolous, then the 

plain statutory language requires the entry of a frivolousness finding as part 

of the Immigration Judge’s decision. But whether the Immigration Judge 

must conduct that analysis in the first place because the DHS requests it is a 

different question. This key distinction was recognized by the Second 

Circuit in stating that Immigration Judges “regularly exercise discretion 

when deciding whether to initiate a frivolousness inquiry.” Mei Juan Zheng, 

672 F.3d at 186. 

 Requiring the adjudicator, either independently or at the request of the 

DHS, to engage in this analysis because the respondent made a material 

misrepresentation upends current practice by creating a rigid structure not 

mandated by statute. It equates adverse credibility with frivolousness, which 

I view as conflicting with the case law. It also removes discretion from the 

Immigration Judge and transfers it to the DHS. Accordingly, the majority’s 

interpretation constitutes an unwarranted expansion of the frivolousness 

provisions. 

 Although the majority casts this question in terms of whether an 

Immigration Judge may “ignore” a mandatory bar to asylum, the question is 

whether the Immigration Judge has the authority to make a judgment about 

pursuing a frivolousness inquiry. This Immigration Judge did not ignore a 

request from DHS to consider frivolousness. Rather, she entertained it and 

made an independent judgment not to proceed based on particular facts and 

circumstances in this case after deliberation. As discussed, the DHS did not 

question the judgment she made, which is a critical distinction; rather the 

DHS questions the ability of the Immigration Judge to make this judgment 

at all.2

 I interpret the language and structure of the statute and development of 

relevant case law, combined with the sequencing of the frivolousness inquiry 

and its consequences, to demonstrate the discretionary nature of the 

frivolousness inquiry. And, absent any challenge to how the Immigration 

Judge exercised her discretion in this case, which I consider to have been 

waived, I would dismiss the appeal. 

2 The relevant factors for the Immigration Judge to assess in making a threshold 

determination whether to invoke the frivolousness inquiry are a separate issue not 

implicated by the posture of this case.