                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 27 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

HERMAN KUSNADI,                                  No. 07-71955

              Petitioner,                        Agency No. A079-572-257

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                       Argued and Submitted May 12, 2011
                            San Francisco, California

Before: GOODWIN and PAEZ, Circuit Judges, and O’GRADY, District Judge.**

       Petitioner Herman Kusnadi seeks review of an order of the Board of

Immigration Appeals (BIA) dismissing an appeal from an order of the Immigration

Judge (IJ) that held—among other things not relevant to this appeal—that Kusnadi

filed a frivolous asylum application. We conclude that Kusnadi was not afforded

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Liam O’Grady, District Judge for the U.S. District
Court for Eastern Virginia, Alexandria, sitting by designation.
sufficient notice and adequate opportunity to explain the grounds invoked for the

frivolousness determination. We therefore grant the petition for review and

remand to the BIA for further proceedings.

      We have jurisdiction under 8 U.S.C. § 1252. Because Kusnadi’s brief to the

BIA clearly argues that the IJ erred in finding that he filed a frivolous application

for asylum, we hold that Kusnadi has properly exhausted his claim. See Zhang v.

INS, 388 F.3d 713, 721 (9th Cir. 2004). Where, as here, the BIA “conducts its own

review of the evidence and law rather than adopting the IJ’s decision,” our review

“is limited to the BIA’s decision except to the extent that the IJ’s opinion is

expressly adopted.” Liu v. Holder, 632 F.3d 1150, 1155 (9th Cir. 2011). We

review de novo the BIA’s determination of whether the IJ complied with the

“procedural requirements for a frivolousness finding.” Id.

      The BIA decided Kusnadi’s appeal two days before publishing In re Y-L-, 24

I. & N. Dec. 151 (B.I.A. 2007), a case that provided generous guidance on the

procedures that immigration judges should follow in determining whether an

asylum application is frivolous. In this case, the requirements of Y-L- were not

met. In particular, the record demonstrates that Kusnadi was not given sufficient

notice and opportunity to explain the grounds invoked for the frivolousness

determination. See 8 C.F.R. § 1208.2; Y-L-, 24 I. & N. Dec. at 241–43; cf. Liu, 632

F.3d at 1158 (granting a Petition for Review where this requirement was not met).
Because of this deficiency, the IJ did not have the opportunity to “separately

address [Kusnadi’s] explanations in the context of how they may have a bearing on

the materiality and deliberateness requirements unique to [the frivolousness]

determination,” as she was required to do. Matter of B-Y-, 25 I. & N. 236, 240

(B.I.A. 2010). We therefore grant Kusnadi’s petition and remand to the BIA for

further proceedings consistent with Y-L-.

      GRANTED and REMANDED.
