Board of Immigration Appeals Reminds Immigration Judges to Do Their Jobs While Still Finding a Way to Harm Immigrants
Continuing a long tradition of dropping precedent-setting decisions on Friday, the Board of Immigration Appeals published Matter of M-M-A-, 28 I&N Dec. 494 (BIA 2022) last week.
When the government alleges that an applicant is ineligible for relief based on a frivolous asylum application, is the immigration judge required to make predicate findings of fact and conclusions of law to determine whether the requirements for a frivolous asylum application have been satisfied?
Yes. An immigration judge is bound to make findings of fact and conclusions of law as to whether the asylum application was frivolous in accordance with Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007).
The Basic Facts:
The decision involved an immigration judge's approval of an application for adjustment of status appealed by the Department of Homeland Security. The Department took the position that the applicant had previously filed a frivolous asylum application and was therefore barred from adjusting.
In 2010, the applicant filed for asylum affirmatively with the U.S. Citizenship & Immigration Services' Asylum Office. His application was referred to the immigration court. Before the court, he filed for adjustment of status based on his marriage to a U.S. citizen and withdrew his asylum application.
At trial, the applicant asked to retract information included in his asylum application, acknowledging he had mischaracterized some details. He filed a waiver of inadmissibility for having misrepresented himself. He then went on to testify that the written declaration submitted in support of his asylum application and his testimony at the asylum interview were false.
It gets better. He also admitted he filed false documentation in support of his asylum application and that none of the facts underlying his application were true. Based on these admissions, the Department asked the immigration court to find he had filed a frivolous asylum application.
The immigration judge declined to do so, finding she was not required to enter such a finding. She approved the waiver of inadmissibility for misrepresentation and approved his application for adjustment of status.
Consequences of a Frivolous Asylum Application:
A frivolousness finding is fundamentally important because, once made, it permanently bars a non-citizen from receiving any benefit under the Immigration & Nationality Act. There are no waivers, and no passage of time can cure this permanent bar.
To reach this conclusion though, an immigration judge is required to apply specific requirements before entering a frivolous finding. These are articulated in the Board's decision in Matter of Y-L-.
The Y-L- Requirements:
The immigration judge or the Department's trial attorney can raise the issue of a frivolous asylum application. Interestingly, an immigration judge is not required to raise the issue if the Department fails to do so. Unless there is a previous frivolousness finding in the record, it does not appear the applicant has any obligation to raise the issue. However, if the Department raises the issue, the immigration judge is required to address it. In such a scenario, the issue cannot be ignored. The requirements are:
- The applicant must be notified of the consequences of filing a frivolous asylum application
- The immigration judge must make a specific finding that the applicant knowingly filed a frivolous asylum application
- There is sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated
- The applicant has been provided with sufficient opportunity to account for any discrepancies
If an Issue Involves Statutory Eligibility, the Immigration Judge Has to Address it:
Board precedent, the INA, and the regulations are fairly straightforward in requiring that immigration judges must address all issues relating to statutory eligibility before rendering a decision. In other words, if either party raises a dispositive issue to the immigration judge the issue must be addressed.
Due to the permanent bar resulting from a frivolous finding, this is a dispositive issue of statutory eligibility. This means an immigration judge is required to make specific findings and conclusions regarding the Matter of Y-L- factors. The problem in this case is the immigration judge failed to do so.
What this means:
Immigration judges issue poorly worded decisions all the time. The worst feeling is losing an appeal on a case you won before the immigration court because the immigration judge failed to fully articulate their decision.
Among other things, this decision is a good reminder to ensure there is a complete record made at the immigration court level. Specifically, if the issue of the frivolousness of a prior asylum application is raised, rather than encourage the judge to ignore it, we should be pushing the judge to find the application was not frivolous based on the factors outlined in Matter of Y-L-.
Nathan R. Bogart is one of the founding partners of Bogart, Small + Associates. He leads the firm's immigration practice group and focuses his practice on immigration-related litigation, including removal defense before the immigration courts, appeals to the Board of Immigration Appeals and U.S. Circuit Courts of Appeal, and federal lawsuits against the agencies tasked with implementing or enforcing U.S. immigration laws.
Bogart Small, + Associates is an award-winning Northwest Arkansas-based law firm focused on representing individuals, families, and small businesses in all immigration matters, as well as criminal defense, family law, and compliance matters.