     04-5027-ag
     Mei Juan Zheng v. Mukasey

 1                               UNITED STATES COURT OF APPEALS
 2
 3                                   FOR THE SECOND CIRCUIT
 4
 5                                       -------------
 6
 7                                      August Term 2007
 8
 9   Argued: October 3, 2007                           Decided: February 1, 2008
10
11                                   Docket No. 04-5027-ag
12
13   --------------------------------------------------X
14
15   MEI JUAN ZHENG,
16
17                                       Petitioner,
18
19                  - against -
20
21   MICHAEL B. MUKASEY,1 Attorney General of
22   the United States,
23
24                                       Respondent.
25
26   --------------------------------------------------X
27
28          Before:         FEINBERG, SOTOMAYOR, and WESLEY, Circuit Judges.
29
30        Petitioner seeks review of a decision of the Board of
31   Immigration Appeals affirming a decision of the Immigration Judge
32   finding that she knowingly made a frivolous application for
33   asylum. We grant the petition, vacate the BIA’s decision, and
34   remand the case for the BIA to consider antecedent questions
35   regarding (1) the applicability of the frivolousness statute to
36   withdrawn asylum applications and (2) an IJ’s discretion to avoid
37   entering frivolousness findings even if the statutory and
38   regulatory conditions for frivolousness have been met.
39
40                          H. RAYMOND FASANO, Madeo & Fasano, New York, NY,
41                               for Petitioner.
42

              1
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
      Attorney   General  Michael   B.   Mukasey   is   automatically
      substituted as the respondent in this case.
 1                       R.   ALEXANDER GORING, Office of Immigration
 2                             Litigation, Civil Division (Alice H. Martin,
 3                             United States Attorney for the Northern
 4                             District of Alabama; Jenny L. Smith,
 5                             Assistant United States Attorney, on the
 6                             brief), for Respondent.
 7
 8
 9   FEINBERG, Circuit Judge:

10          A person who makes an application for asylum determined to

11   be “frivolous,” or deliberately and materially false, is

12   subject to a grave penalty: permanent ineligibility for most

13   forms of relief under the immigration laws. Petitioner in this

14   case, Mei Juan Zheng (“Zheng”),2 deliberately filed a

15   materially false asylum application, but withdrew it before the

16   immigration judge (“IJ”) made a final determination of the

17   application. Zheng seeks review of an August 2004 decision of

18   the Board of Immigration Appeals (“BIA”) affirming an April

19   2003 decision of the IJ finding that Zheng knowingly made a

20   frivolous application for asylum. We remand her case to the BIA

21   to clarify whether she is properly subject to the frivolousness

22   bar.

23

24   I.     BACKGROUND




             2
             Some documents in this case, though not the official
      caption, give Petitioner’s name as “Zheng Mei Juan” or “Zhen
      Mei Juan.”

                                         -2-
 1        Zheng, a native and citizen of the People’s Republic of

 2   China, entered the United States illegally in 2000 with the

 3   help of a “snakehead,” or smuggler. She was subsequently served

 4   with a Notice to Appear charging her as removable as an

 5   immigrant not in possession of a valid entry or travel

 6   document, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Zheng

 7   filed an application for asylum and withholding of removal, in

 8   which she alleged that local birth control officials forced her

 9   to have an abortion and insisted that she accept an

10   intra-uterine device.

11        IJ Gabriel C. Videla engaged in the following exchange

12   with Zheng at a hearing in August 2000:

13             Q. Now, before I can accept the application I
14        have to give you some warnings. If I later determine
15        that this application is frivolous, this means it’s
16        an application that contains false information, then
17        you will be forever barred from ever receiving any
18        Immigration benefits under our laws. Let me explain
19        to you what that means. If, for example, you live
20        here for the next 20 years or you may be a U.S.
21        citizen or you have U.S. citizen children it would
22        make no difference. You would still not be able to be
23        here legally in this country again if I make a
24        determination that you filed a frivolous application.
25        Have you understood this?
26             A. Yes. I understand.
27             Q. And having understood this do you still
28        represent to the Court under oath that everything on
29        this application is true and accurate?
30             A. Yes.

31   The IJ also gave Zheng a written copy of the warning.

32        In January 2001, Zheng withdrew her asylum application

33   with prejudice at a calendar hearing. She filed a new

                                   -3-
 1   application in May 2001, seeking withholding of removal under

 2   the Convention Against Torture on the grounds that the

 3   snakehead to whom she owed money would harm her if she returned

 4   to China, and that Chinese officials would jail and torture her

 5   for illegally entering the United States. In her new

 6   application, Zheng admitted that, on the snakehead’s advice,

 7   she had lied about her birth control claim for fear of being

 8   returned to China. Zheng also acknowledged the lie at an April

 9   2003 hearing, saying that she had made up the birth control

10   claim but had since decided, “I cannot lie to the Immigration

11   Judge. I have to tell him the truth.”

12        After Zheng finished testifying, the IJ asked Zheng’s

13   lawyer to explain whether he “should or should not make a

14   frivolousness finding.” Her lawyer answered that the IJ had

15   discretion whether to make a frivolousness finding, and that

16   Zheng should be treated leniently because she had voluntarily

17   come forward with the truth more than two years earlier and was

18   only 18 when she entered the United States. The IJ agreed that

19   Zheng’s forthrightness and her youth were “favorable factors,”

20   but he concluded that he lacked discretion under the statute

21   and implementing regulations to avoid a frivolousness finding.

22   He also concluded that Zheng’s withdrawal of her false

23   application had no effect on the applicability of the

24   frivolousness bar. Because the IJ found that Zheng had


                                   -4-
 1   deliberately made a materially false asylum application after

 2   receiving adequate notice, he entered a frivolousness finding.3

 3         The BIA affirmed the IJ’s decision without opinion on

 4   August 27, 2004. Zheng timely appealed.

 5

 6   II.   DISCUSSION

 7         Title 8, Section 1158(d) of the United States Code

 8   provides in relevant part:

 9         (4) Notice of privilege of counsel and consequences
10         of frivolous application
11
12              At the time of filing an application for asylum,
13         the Attorney General shall--
14
15                 (A) advise the alien of the privilege of being
16                 represented by counsel and of the consequences,
17                 under paragraph (6), of knowingly filing a
18                 frivolous application for asylum . . . .
19
20         . . .
21
22         (6) Frivolous applications
23
24              If the Attorney General determines that an alien
25         has knowingly made a frivolous application for asylum
26         and the alien has received the notice under paragraph
27         (4)(A), the alien shall be permanently ineligible for
28         any benefits under this chapter, effective as of the
29         date of a final determination on such application.

30   8 U.S.C. § 1158(d). An asylum application is “frivolous” if any

31   of its material elements is deliberately fabricated. 8 C.F.R.



            3
             The IJ also rejected Zheng’s claim for withholding of
      removal under the Convention Against Torture. Zheng has not
      pursued that claim on appeal.

                                       -5-
 1   § 208.20; cf. In re Y- L-, 24 I. & N. Dec. 151, 155 n.1 (B.I.A.

 2   2007) (“Obvious legal insufficiency of a claim does not support

 3   a frivolousness finding.” (citing Scheerer v. U.S. Att’y Gen.,

 4   445 F.3d 1311, 1318 (11th Cir. 2006))). Thus, if an IJ

 5   determines that an alien knowingly made an application for

 6   asylum with one or more deliberately fabricated material

 7   elements, and the alien received proper notice, the alien is

 8   permanently barred from receiving most benefits under the

 9   immigration laws.4

10        An alien is entitled to a variety of procedural safeguards

11   before being subject to this permanent bar. They include

12        (1) notice to the alien of the consequences of filing
13        a frivolous application; (2) a specific finding by
14        the Immigration Judge or the Board that the alien
15        knowingly filed a frivolous application; (3)
16        sufficient evidence in the record to support the
17        finding that a material element of the asylum
18        application was deliberately fabricated; and (4) an
19        indication that the alien has been afforded
20        sufficient opportunity to account for any
21        discrepancies or implausible aspects of the claim.

22   Y- L-, 24 I. & N. Dec. at 155 (applying 8 U.S.C.

23   § 1158(d)(4)(A) and 8 C.F.R. § 208.20). The BIA has clarified

24   that the IJ must address the question of frivolousness

25   separately from any adverse credibility determination, id. at

26   156, and must provide “cogent and convincing reasons” for




           4
            An alien who has made a frivolous asylum application may
      still seek withholding of removal. 8 C.F.R. § 208.20.

                                   -6-
 1   finding, by a preponderance of the evidence, deliberate

 2   fabrication of a material element of the claim, id. at 158.

 3        Zheng’s initial petition unquestionably contained

 4   deliberately fabricated material elements, and she received the

 5   safeguards described in the BIA’s decision in Y- L-. First,

 6   before accepting her initial application, the IJ gave Zheng

 7   both oral and written warnings about the consequences of

 8   proceeding with a frivolous application. Zheng said she

 9   understood the consequences, and she swore that her application

10   was truthful. Second, the IJ made a specific finding that Zheng

11   knowingly filed a frivolous asylum application, which was not

12   part of an adverse credibility determination. Third, as noted

13   above, the evidence supporting the frivolousness finding was

14   uncontroverted. Finally, Zheng was given an opportunity to

15   account for the falsehood; she explained that she had

16   intentionally lied because of the snakehead’s instructions to

17   do so.5

           5
            In Y- L-, the BIA stated that it would be “good practice”
      for an IJ to raise concerns about a potential frivolousness
      finding before the end of proceedings. Y- L-, 24 I. & N. Dec.
      at 159-60. We recently asked the BIA to consider, inter alia,
      “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
      268, 279 (2d Cir. 2007) (per curiam) (emphasis added). The BIA
      has not yet issued a decision pursuant to our remand in Biao
      Yang.
           Zheng argues to us that even though the IJ asked Zheng’s

                                   -7-
 1        But although we conclude that Zheng’s petition contained

 2   deliberately fabricated material elements and that the IJ

 3   followed the appropriate procedures, we remand to the BIA to

 4   consider antecedent issues concerning the applicability of the

 5   frivolousness statute to an asylum application that is filed

 6   and then withdrawn before a decision on its merits.

 7   Specifically, we invite the BIA to consider the following

 8   questions: (1) Is the IJ’s authority to “determine[] that an

 9   alien has knowingly made a frivolous application for asylum”

10   limited to circumstances in which the IJ makes “a final

11   determination on such application”? 8 U.S.C. § 1158(d)(6)

12   (emphasis added). (2) Does an IJ retain any discretion under 8

13   U.S.C. § 1158(d)(6) to decline to make a frivolousness finding

14   even if she finds that the statutory and regulatory conditions

15   for frivolousness have been met? We discuss these questions in

16   turn.

17        1.   Whether the IJ’s authority to “determine[] that
18             an alien has knowingly made a frivolous
19             application for asylum” is limited to
20             circumstances in which the IJ makes “a final
21             determination on such application.”
22
23        A provision in Section 1158(d)(6) states that, if the

24   Attorney General determines that an alien has knowingly made a



      lawyer to explain whether a frivolousness finding was
      warranted, Biao Yang requires earlier or more extensive
      warnings. In light of the pending remand in that case, we
      decline to express a view on the matter now.

                                   -8-
 1   frivolous asylum application, “the alien shall be permanently

 2   ineligible for any benefits under this chapter, effective as of

 3   the date of a final determination on such application.” 8

 4   U.S.C. § 1158(d)(6) (emphasis added). No final determination

 5   was ever made on Zheng’s fraudulent asylum application, because

 6   she withdrew it at a master calendar hearing, before she

 7   testified in support of it and before the IJ issued any

 8   decision.

 9        This language is susceptible of at least two meanings,

10   each of which is potentially problematic. Read literally, the

11   statute seems to state that a frivolousness finding concerning

12   an asylum application may take effect only after a final

13   determination is made on the same application. If there were

14   never a final determination on the application -- if it were

15   withdrawn, for instance -- then the frivolousness finding would

16   not take effect at all. Because an alien may withdraw an asylum

17   application at any time before a decision is issued, see 8

18   C.F.R. § 103.2(b)(6), this construction would seem to allow an

19   alien to withdraw a materially false application on the eve of

20   a decision without suffering any adverse consequences for the

21   falsehood. Needless to say, such an outcome would undermine the

22   potency of the frivolousness bar as a deterrent to lying.

23        But the alternative view -- that an IJ may make a

24   frivolousness finding concerning an asylum application without


                                   -9-
 1   also making a final determination on such application -- is

 2   difficult to square with the plain language of the statute.

 3   Moreover, this construction could lead to absurdities of its

 4   own, because it does not limit an IJ’s power to make

 5   frivolousness findings to applications actually pending before

 6   the IJ. Without any limiting language, could an IJ make a

 7   frivolousness finding as to a decade-old asylum application,

 8   for example, or one submitted before a different IJ?6

 9        Each view is backed by case law from other circuits. The

10   Sixth Circuit has held that a withdrawn asylum application may

11   form the basis of a valid frivolousness finding, although it

12   did not address the ambiguities in the statutory language that

13   we raise here. See Lazar v. Gonzales, 500 F.3d 469, 476 (6th

14   Cir. 2007) (“Lazar’s withdrawal of his asylum application did

15   not obviate the need for the IJ to determine whether his false

16   application should be deemed frivolous. . . . [T]he IJ’s

17   frivolousness finding was not mooted by the withdrawal of his

18   application.”). The Eleventh Circuit reached the same

19   conclusion in a case where the alien filed an amended asylum


           6
             In Yuanliang Liu v. U.S. Department of Justice, 455 F.3d
      106 (2d Cir. 2006), we identified but did not answer a number
      of “difficult questions,” including whether “a misstatement in
      a first submission, which did not further the specific asylum
      claim pressed in a second application, qualif[ies], for the
      purposes of frivolousness, as a deliberate fabrication of a
      material element.” Id. at 116. On remand, the BIA did not
      address the question. See Y- L-, 24 I. & N. Dec. 151.

                                  -10-
 1   application, although he did not withdraw the first application

 2   with material misstatements. See Barreto-Claro v. U.S. Att’y

 3   Gen., 275 F.3d 1334, 1339 (11th Cir. 2001) (permitting

 4   frivolousness finding against alien because of misstatements in

 5   first asylum application, which alien replaced prior to hearing

 6   with accurate, amended application).7 By contrast, the Third

 7   Circuit has held that false statements in a time-barred asylum

 8   application are not “material,” and therefore cannot form the

 9   basis for a frivolousness finding, because the application

10   could not be granted under any circumstances and thus the

11   misstatements “had neither the natural tendency nor the

12   capability of influencing the decision.” Luciana v. Att’y Gen.,

13   502 F.3d 273, 280 (3d Cir. 2007). But see Mingkid v. U.S. Att’y

14   Gen., 468 F.3d 763, 768 (11th Cir. 2006) (finding no barrier to

15   frivolousness finding with respect to time-barred application);

16   Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005)

17   (assuming same, without analysis). The logic of Luciana could

18   potentially be extended to false statements in an asylum

19   application withdrawn before a decision on the merits.


           7
             Unlike in this case, the aliens in Lazar and Barreto-
      Claro did not reveal their false statements voluntarily. In
      Lazar, the alien was surprised by the government at cross-
      examination, after which he withdrew his asylum application.
      See Lazar, 500 F.3d at 473-74. In Barreto-Claro, the alien
      amended his application upon learning that immigration
      officials had discovered that he had lied. See In re Barreto-
      Claro, No. A76 957 148, at 3 (B.I.A. Dec. 13, 1999).

                                  -11-
 1        We recognize that in addition to these two possible

 2   meanings, there may be other viable interpretations of the

 3   statute, informed by the broader statutory and regulatory

 4   framework, legislative history, and other considerations. We

 5   decline to decide this vexing question of statutory

 6   construction, on whose outcome the disposition of this petition

 7   depends, without the benefit of the BIA’s views.

 8
 9        2.   Whether an IJ retains any discretion under 8
10             U.S.C. § 1158(d)(6) to decline to make a
11             frivolousness finding even if the IJ finds that
12             the statutory and regulatory conditions for
13             frivolousness have been met.
14
15
16        If the first construction of § 1158(d)(6) discussed above

17   is correct -- if an IJ may not make a frivolousness finding

18   with respect to an asylum application on which the IJ does not

19   also make a final determination -- then the frivolousness

20   finding against Zheng must be vacated. But if the second

21   construction is correct, and an IJ may make a frivolousness

22   finding with respect to any asylum application that is

23   deliberately and materially false, withdrawn or not, then a

24   further question arises: does the IJ retain any discretion to

25   avoid doing so?

26        The IJ in this case concluded that he had none. Although

27   he acknowledged the existence of “some favorable factors in

28   this case,” such as Zheng’s youth and her decision to withdraw


                                  -12-
 1   her false application voluntarily, he held that they were of no

 2   moment, because 8 C.F.R. § 208.20 “does not confer this

 3   tribunal with any discretion in this regard.” But a review of

 4   cases with similar facts reveals that some IJs do not consider

 5   themselves bound to make findings of frivolousness simply

 6   because an applicant has admitted to deliberately making false

 7   material statements in a pending or prior asylum application.

 8   See, e.g., Ying Lin v. Gonzales, 245 F. App’x 33 (2d Cir. 2007)

 9   (summary order); Xiu Yu Bian v. Gonzales, 221 F. App’x 45 (2d

10   Cir. 2007) (summary order).8

11        Moreover, the statutory and regulatory language is not as

12   unambiguous as the IJ’s decision suggests. The regulatory

13   language on which he relied states that a frivolousness finding

14   “shall only be made if the immigration judge or the Board is

15   satisfied that the applicant, during the course of the

16   proceedings, has had sufficient opportunity to account for any

17   discrepancies or implausible aspects of the claim.” 8 C.F.R.

18   § 208.20 (emphasis added). This sentence simply imposes a

19   condition that must be satisfied before any frivolousness



           8
             Despite the petitioner’s misrepresentations, the IJ in
      Xiu Yu Bian rejected the Government’s motion for a
      frivolousness finding because the petitioner (1) had received
      bad advice from counsel, (2) voluntarily recanted her false
      statements, and (3) was only 19 years old when the false
      application was filed. In re Xiu Yu Bian, No. A95 673 235, at
      14 (Immig. Ct. N.Y. City Jan. 31, 2005).

                                    -13-
 1   finding is made; it does not mandate that a frivolousness

 2   finding be made in all cases where an applicant has had

 3   sufficient opportunity to account for discrepancies. In fact,

 4   this language might instead reasonably be taken to support

 5   Zheng’s position: a rule that permits the IJ to consider only

 6   the fact that an alien lied, not the reasons she did so, may

 7   not provide the alien with the “sufficient opportunity” to

 8   explain that the regulation requires.9

 9        The language of the statute itself is opaque. It states

10   that an alien is subject to the frivolousness bar if an IJ

11   “determines that the alien has knowingly made a frivolous

12   asylum application” after receiving notice. 8 U.S.C.

13   § 1158(d)(6). It is unclear here whether the word “determines”

14   connotes an exercise of judgment or a mechanical application of

15   a legal conclusion following pertinent factual findings.




           9
             Although the Eleventh Circuit held that the “sufficient
      opportunity” requirement does not require an IJ to consider the
      reasons “why concededly material fabrications were knowingly
      made,” Barreto-Claro, 275 F.3d at 1339 (internal quotation
      marks omitted), our own court has suggested that “what
      qualifies as a ‘sufficient opportunity’ for the purposes of
      satisfying the agency regulations governing frivolousness
      findings would, we would think, have to be more ample than what
      suffices in the ordinary course of asylum proceedings,”
      Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 114 n.3
      (2d Cir. 2006) (emphasis omitted).



                                  -14-
 1        In considering whether an IJ has any discretion with

 2   respect to making frivolousness findings, one potentially

 3   useful question the BIA may wish to consider is whether the

 4   doctrine of timely recantation, found elsewhere in its

 5   jurisprudence, has any application in this context. See Matter

 6   of M—, 9 I. & N. Dec. 118, 119 (B.I.A. 1960) (“[W]here an alien

 7   in an immigration proceeding testifies falsely under oath as to

 8   a material fact but voluntarily and without prior exposure of

 9   his false testimony comes forward and corrects his testimony,

10   perjury has not been committed and the charge based thereon is

11   not sustained.”). At least one non-precedential BIA opinion has

12   declined to rule out the possibility that timely recantation

13   could apply in this context. In re Lazar, No. A72 026 924, at 1

14   (B.I.A. Feb. 17, 2006) (“[E]ven if there could be circumstances

15   in which a timely retraction of a deliberate material

16   fabrication could be effective to preclude a finding of

17   frivolousness, . . . such a timely retraction did not occur.”).

18

19   III. CONCLUSION

20        Remand is appropriate in this case as a matter of

21   discretion for the reasons identified in Yuanliang Liu v. U.S.

22   Department of Justice, 455 F.3d 106 (2d Cir. 2006): (1)

23   insufficient attention by the IJ and the BIA to the questions

24   identified here; (2) the desirability of national uniformity


                                  -15-
 1   given the grave consequences of a frivolousness finding; (3)

 2   the ambiguity of the statute and corresponding regulations; (4)

 3   the dearth of law in this circuit related to these questions;

 4   (5) the high volume of cases that this issue implicates; and

 5   (6) the severe impact of a frivolousness finding on an alien’s

 6   immigration prospects.   See id. at 116-17.

 7        For the foregoing reasons, we grant the petition for

 8   review, vacate the frivolousness finding, and remand the case

 9   to the BIA for further proceedings consistent with this

10   opinion.




                                   -16-
