Second Circuit Opines on Written Frivolous Asylum Warnings

The Second Circuit has determined that an applicant’s signature creates a rebuttable presumption that they understood the written frivolous asylum warnings on the asylum application. However, if the applicant “plausibly claims and presents credible evidence that he was unable to understand the printed Frivolousness Warning on his signed asylum application, the presumption of understanding established by his signature may not be determinative of notice.”

The full text of Ud Din v. Garland can be found here:

https://www.ca2.uscourts.gov/decisions/isysquery/40b973a6-4b14-456c-9969-020104488757/2/doc/21-6586_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/40b973a6-4b14-456c-9969-020104488757/2/hilite/

Ninth Circuit Remands Asylum Claim for Gay Nigerian Man

The Ninth Circuit has remanded an asylum claim for a gay Nigerian man, finding that a lie about the name of the hotel where was seen having sex with his boyfriend was not related to a material element of his claim. As such, the agency’s frivolous finding did not withstand scrutiny. In addition, the applicant had presented numerous corroborating documents establishing that he was gay, and the agency ignored these documents, in violation of the applicant’s due process rights.

The full text of Udo v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/04/20-70078.pdf

BIA Mandates IJ Make Frivolous Findings when DHS Raises Issue

The Board of Immigration Appeals has determined that when “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.” The Board left open the possibility that an Immigration Judge might have the discretion not to enter a frivolous finding even if the requirements for such a determination have been met.

The full text of Matter of M-M-A can be found here:
https://www.justice.gov/eoir/page/file/1482556/download

Sixth Circuit finds no Requirement for Oral Frivolous Warnings

The Sixth Circuit has determined that the written warnings in an asylum application regarding the consequences of filing a frivolous asylum claim are sufficient; there is no requirement that an immigration judge orally repeat those warnings. The court recognized the possibility that this written warning might not suffice if an applicant did not adequately learn of it—say, because the applicant does not speak English and the person who completed the application did not pass along this information.

The full text of Khaytekov v. Garland can be found here:

https://www.opn.ca6.uscourts.gov/opinions.pdf/22a0036p-06.pdf

BIA Declines to Reopen Case with Prior Frivolous Asylum Finding

The Board of Immigration Appeals (Board) has determined that “[a]bsent a showing of prejudice on account of ineffective assistance of counsel, or a showing that clearly undermines the validity and finality of the finding, it is inappropriate for the Board to favorably exercise our discretion to reopen a case and vacate an Immigration Judge’s frivolousness finding.”

“Based upon the record presented, we are not persuaded that the filing deadline should be equitably tolled because the respondent was prejudiced by the ineffective assistance of her second counsel resulting from the appellate brief he filed in 2005. Although the respondent has substantially complied with the procedural requirements for a claim of ineffective assistance of counsel as outlined in Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), she did not establish that the deficiency in the appellate brief filed was prejudicial to her case. The respondent’s previous counsel had already explicitly disputed the frivolousness finding on her Notice of Appeal (Form EOIR-26). Contrary to the respondent’s contention, this Board considered both the adverse credibility and frivolousness findings on the merits. Moreover, a third counsel filed a timely motion to reconsider, which again set forth numerous arguments contesting the adverse credibility finding, but the motion was denied. On these facts, we find no reasonable likelihood that the outcome of the respondent’s proceedings would have been different if counsel had challenged the frivolousness finding in the appellate brief he prepared and filed for the respondent.”

“Despite the various efforts of the three attorneys who represented the respondent, she has also not explained why she apparently made no inquiries regarding the frivolousness finding or took any steps to contest it between the years 2005 and 2019. This inaction for the nearly 14-year period between our administratively final order and the filing of her current motion demonstrates a lack of due diligence.”

The full text of Matter of H-Y-Z- can be found here:

https://www.justice.gov/eoir/page/file/1336706/download

Ninth Circuit Finds that Frivolous Asylum Application Bars 237(a)(1)(H) Waiver

The Ninth Circuit finds that the filing of a frivolous asylum application prohibits an applicant from later seeking a waiver of inadmissibility under section 237(a)(1)(H) of the INA. The petitioner filed a frivolous asylum application in 1999 under a false name, and was subsequently granted asylum and permanent residency under his real name. He was later placed in removal proceedings, and sought a waiver under section 237(a)(1)(H), but the agency determined that the filing of a frivolous asylum application in 1999 barred from seeking the waiver. The Ninth Circuit agreed.

The full text of Manhani v. Barr can be found here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/17-72231.pdf

Board of Immigration Appeals Addresses Untimely Frivolous Asylum Application

The Board of Immigration Appeals has determined that when an applicant for asylum fabricates his entry date, thus making it appear that he has met the requirement for filing asylum within one year of entry, an Immigration Judge can properly find that he filed a frivolous asylum application.  The fabricated entry date is material to the asylum claim, insomuch as the filing deadline is a statutory requirement for eligibility.  It does not matter that, in reality, the asylum application is time barred because no exception to the one-year filing deadline exists.  The application can still be deemed frivolous.

The full text of Matter of M-S-B- can be found here: 

https://www.justice.gov/eoir/page/file/917781/download

Fourth Circuit Addresses Frivolous Asylum Applications

The Fourth Circuit has determined that the written frivolous warnings in the asylum application are sufficient to place an applicant on notice of the consequences of filing a frivolous asylum application.  An Immigration Judge need give oral warnings in court.

The full text of Ndibu v. Lynch  can be found here: http://www.ca4.uscourts.gov/Opinions/Published/142250.P.pdf

Sixth Circuit Grants Petition for Review of a Frivolous Asylum Application Determination

Wisam Yousif applied for asylum on the basis of past persecution he had suffered in Iraq as a Chaldean Christian.  Throughout the proceedings, Yousif provided contradictory evidence, leading the Immigration Judge to conclude that he had fabricated the entire narrative of past persecution.  Four years after the application was first filed, the Immigration Judge denied it and deemed it o be frivolous.  Nevertheless, the Department of Homeland Security conceded at that time that a pattern or practice of persecution against Chaldean Christians was occurring in Iraq, and stipulated to a grant of withholding of removal for Yousif.  

Yousif appealed, noting that the evidentiary standard for withholding of removal is higher than that for asylum, and thus, if he was eligible for withholding of removal on the basis of a clear probability of future persecution, he was necessarily eligible for asylum based on a well-founded fear of future persecution, even if his allegations of past persecution were fabricated.  Essentially, he argued that his allegations of past persecution were immaterial because they did not change the outcome - he was statutorily eligible for asylum.

On appeal, the Sixth Circuit stated that the frivolous nature of an asylum application must be judged based on circumstances in existence at the time of filing, not at the time of adjudication.  Thus, if at the time Yousif filed his application, he would have been eligible for asylum based on a well-founded fear of future persecution due to a pattern or practice of persecution of Chaldean Christians in Iraq, his allegations of past persecution (even if fabricated) were immaterial, and could not support a frivolous finding.  If, however, the conditions in Iraq at the time of filing would not have given rise to a well-founded fear of persecution absent some past persecution, Yousif's fabricated allegations were material, and could support a frivolous finding.  The court remanded for the Immigration Judge to evaluate the materiality of the fabricated allegations at the time the application was filed.

The full text of Yousif v. Lynch can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0181p-06.pdf

The Tragic Consequences of a Frivolous Asylum Application

This week, the 11th Circuit issued a decision regarding a frivolous asylum application.  On its face, the decision is very fact-specific, and perhaps not terrifically useful for analogizing to other cases.  But there were two things that struck me while I was reading the decision.

1) During her proceedings, the petitioner requested to see the original version of a government-produced document, but was only provided with a photocopy.  The 11th Circuit saw no error here, stating that there is no requirement that the Government turn over original documents.  I thought about the many times that I've heard Immigration Judges require that an immigrant provide their original birth certificate, passport, medical records, etc. in order to allow the Government to test them for fraud.  The double standard seems unfair - if the Government is entitled to an immigrant's original documents to verify their authenticity, why isn't the immigrant entitled to the same process? Which perhaps harkens to a larger issue in the law that governs the admission of evidence in Immigration Court - why are public or government records sometimes considered inherently reliable?

2) Perhaps the more tangible thought I had while reading the decision was about the potentially dire consequences of hiring a non-attorney to complete the asylum application.  Frivolous asylum applications are lifetime bars to immigration benefits.  In this cost, it cost the woman her ability to apply for permanent residence through her U.S.-citizen husband.  It's a reminder of how important it is to hire a qualified attorney to assist with an immigration process, and how important it is that the legal community educate our wider communities about immigration fraud.

The full text of Indrawati v. Attorney General can be found here: http://media.ca11.uscourts.gov/opinions/pub/files/201312071.pdf