                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-2007

Luciana v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-3544




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                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 05-3544
                     __________


              WANDAYANI LUCIANA,

                                       Petitioner

                           v.

 ATTORNEY GENERAL OF THE UNITED STATES,

                                       Respondent

                     __________

        Petition for Review of an Order of the
            Board of Immigration Appeals
                  (No. A95-862-243)
       Immigration Judge: Charles M. Honeyman
                      __________


    Submitted pursuant to Third Circuit LAR 34.1(a)
                  February 27, 2007

Before: McKee and Aldisert, Circuit Judges, and Restani,
                              Judge*

                 (Filed September 17, 2007)


Lisa A. Baird
924 Cherry Street, Ste. 519
Philadelphia, PA 19107

      Attorney for Petitioner

Peter D. Keisler
       Assistant Attorney General
       Civil Division
Richard M. Evans
Mark L. Gross
Wonkee Moon
Department of Justice
950 Pennsylvania Ave., NW
PHB Room 4503
Washington, DC 20530

      Attorneys for Respondent




      *
        The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.

                                2
                         __________

                 OPINION OF THE COURT
                       __________

ALDISERT, Circuit Judge.

       This petition by Wandayani Luciana for review of an
order of the Board of Immigration Appeals (“BIA” or “Board”)
requires us to decide whether a single fabricated incident in
Petitioner’s time-barred asylum application renders the
application frivolous and consequently renders her permanently
ineligible for any and all benefits under the Immigration and
Nationality Act. We conclude as a matter of law that Petitioner’s
petition was not frivolous, and we will grant this petition for
review.

                               I.

       Luciana is an Indonesian national of Chinese ancestry.
She entered the United States as a nonimmigrant visitor on or
about December 7, 2000, with authorization to remain here until
June 6, 2001. She remained past that date and submitted an
application for asylum and withholding of removal on
November 2, 2002, approximately 23 months after her arrival in
the United States. In her application, she asserted that she is
ethnically Chinese and Christian, and alleged past persecution
as well as a well-founded fear of future persecution based on her
race and religion should she return to Indonesia.

                               3
       The Asylum Officer denied her application, and referred
her case to the immigration enforcement authorities. Luciana
was served with a Notice to Appear charging that she was
removable from the United States because, after admission as a
nonimmigrant under the Immigration and Nationality Act
(“INA”) § 101(a)(15), 8 U.S.C. § 1101(a)(15), she remained in
the United States longer than permitted. She appeared before an
immigration judge (“IJ”) and conceded removability, but
requested asylum, withholding of removal, relief under Article
III of the Convention Against Torture (“CAT”), and, in the
alternative, voluntary departure.

        A hearing was held before the IJ on December 23, 2003.
Luciana testified through an Indonesian interpreter that she is an
Indonesian national of Chinese ancestry and that she entered the
United States on December 10, 2000. She testified that, in
Indonesia, she was a baptized member of the Pentecostal
Christian Church from February 26, 1995, until her departure to
the United States in December 2000. She testified that since her
arrival here she has been a member of a number of Indonesian
Christian churches.

       She explained that, when living in Indonesia, she
experienced problems because of her Chinese ancestry and
religious beliefs. First, she testified about an incident in which
she was dismissed from school “because there was an incident
where a maid was beaten by her pastor who was Chinese.” A.R.
194. She also testified that she was often mocked on the streets


                                4
on her way to and from school because she was Chinese. She
further recounted two incidents in 1998 during which groups of
men looted her father’s store while she was away. Her father
reported one of the incidents to the police, but they told him they
could not help. Lastly, Luciana testified that, because of riots
targeting Christians of Chinese ancestry, her church in Indonesia
was forced to meet in members’ homes.

       Luciana wanted to leave Indonesia because she was
afraid. She said that people of Chinese descent were not
protected in Indonesia, and that her life would be in danger if
she returned to Indonesia because Muslims, who are the
majority in Indonesia, hate Christians. She also testified that she
believed that if she returned to Indonesia and opened a business,
she would likely be robbed.

       When the IJ asked why she did not apply for asylum
during her first year in the United States, she said that she
planned to file an asylum application in May 2001, but her
father suffered an accident and she was forced to take care of
him.1 When the IJ asked her why her father’s injury prevented
her from filing her application, she testified that, as the oldest


       1
          Apparently, Luciana came to the United States with her
father, See Ek Go, and her mother, Widyani Suwita. Her mother and
father also filed asylum applications and, at one time, the applications
of all three were consolidated. However, Luciana’s was later severed
from her parents’ asylum applications. Luciana also had a minor
brother who was in the country legally under a student visa.

                                   5
child, she was responsible for caring for her father and seeing to
his medical needs. She testified that her father’s accident
occurred in May 2001, he had related surgeries through June
2001, and he underwent out-patient physical therapy until
December 2001. The IJ noted that Luciana did not apply for
asylum until November 2002 – 11 months after the end of her
father’s physical therapy. When government counsel asked why
she could not file the application while caring for her father
given that she knew the application needed to be filed within
one year, Luciana explained that she “was not thinking that far
ahead and continued to care for her father who was under
stress.” App. 20.

        Luciana testified that she asked an attorney to help her in
filing an asylum application, but that he refused to help after
learning that she had been in the United States for longer than
one year. Subsequently, she got help from a man named “Tony
Tju” who prepared the application for her. She gave him written
information about her experiences in Indonesia for use in
preparing the asylum application. When the IJ asked if the
information in her asylum application was consistent with the
information she provided to Tju, Luciana testified that she did
not provide Tju with information about the December 1999
incident that was included in her asylum application. In her
asylum application, Luciana alleged that she had been assaulted
and cut with a knife by native Indonesians because of her
religious beliefs on the way to church. Luciana testified that Tju
made up the incident because he believed it would strengthen


                                6
her application. She testified that she attended her asylum
interview with Tju but without an interpreter. She further
testified that although she did not affirmatively discuss the
made-up December 1999 incident and knew that it did not
occur, when the asylum officer asked her about it, she described
the incident as written in her application. Luciana testified that
she lied about this incident because Tju told her that if she told
the truth about it, he would tell the asylum officer that the lie
was entirely hers and that he had nothing to do with it. She said
that because she was not very familiar with the asylum process,
she was fearful.

        The IJ issued an oral decision in which he found that
Luciana was statutorily ineligible for asylum because she failed
to file an asylum application within the one-year limitation
period without demonstrating exceptional circumstances or
changed country conditions to excuse the delay. Additionally,
the IJ stated that if one of the exceptions to the one-year bar
were to apply, he “would also have serious problems with regard
to the respondent’s claim . . . .” App. 25. Although the IJ found
her assertions that she is a Christian and a native of Indonesia
credible, he stated that, were he to reach the merits of the
asylum application, he would find her testimony not credible
insofar as it pertained to past persecution. The IJ then considered
Luciana’s requests for withholding of removal and relief under
the CAT. He found that she presented no evidence of past
persecution. In addition, he concluded that she had not
demonstrated that it was more likely than not that she would be


                                7
persecuted or tortured because of her race or religion by, or with
the consent or acquiescence of any agent of, the Indonesian
government. Therefore, the IJ denied Luciana’s application for
asylum, withholding of removal, relief under the CAT, and, in
the alternative, voluntary departure.2 In addition, because of the
fabrication of the December 1999 incident, the IJ found that
Luciana “knowingly filed an asylum application which is
frivolous in part, thereby triggering the lifetime bar to benefits
pursuant to Section 208(d)(6) and 8 C.F.R. § 208.20 et seq.”
App. 32-33.

       Luciana filed a Notice of Appeal to the BIA on January

       2
         Because the IJ found that Luciana was not a person of
good moral character, he denied Luciana’s request for voluntary
departure. See 8 U.S.C. § 1229c(b)(1)(B). His finding that she
was not a person of good moral character was based on his
finding that she ratified the partially-fabricated asylum
application during her interview with the asylum officer. INA
§ 101(f)(6) provides, in relevant part: “No person shall be
regarded as, or found to be, a person of good moral character
who, during the period for which good moral character is
required to be established is, or was – . . . one who has given
false testimony for the purpose of obtaining any benefits under
this chapter.” 8 U.S.C. § 1101(f)(6). In In re R-S-J, 22 I.&N.
Dec. 863, Interim Dec. (BIA 1999), the BIA held that for
purposes of INA § 101(f)(6), false oral statements made under
oath to an asylum officer can constitute false testimony as
defined in Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981),
reversed on other grounds, 464 U.S. 183 (1984).

                                8
14, 2004. On August 7, 2004, Luciana married a United States
citizen, William T. Hughes, Jr. Thereafter, on February 2, 2005,
the Department of Homeland Security approved the Petition for
Alien Relative (Form I-130) that Hughes filed for Luciana, and
authorized Luciana to apply to adjust her status to permanent
resident (Form I-485). Luciana and Hughes testifed that their
son, Evan, was born on June 14, 2005. On March 17, 2005,
Luciana filed a motion with the BIA to overturn the IJ’s
frivolousness finding and remand her case to the IJ for
consideration of her application to adjust status to lawful
permanent resident.

        On June 24, 2005, the BIA affirmed the IJ’s decision
“based upon and for the reasons set forth therein.” App. 3. The
BIA agreed that Luciana did not file her asylum application in
a timely fashion or demonstrate circumstances preventing her
from filing for asylum within the allotted time. The BIA also
agreed that she did not establish that it is more likely than not
that she would be persecuted or tortured if returned to Indonesia,
and it affirmed the IJ’s “finding that [Luciana] filed a frivolous
asylum application.” Id. The BIA also held Luciana ineligible
for adjustment of status because her asylum application had
been found frivolous. Therefore, it denied her motion for
remand to the IJ for an adjustment of status.

       Luciana then filed a timely petition for review.

                               II.


                                9
                                 A.

       We begin by reviewing the relevant provisions of asylum
law. Under 8 U.S.C. § 1158(a)(1), “[a]ny alien who is physically
present in the United States . . . may apply for asylum . . . .” This
provision, however, “shall not apply to an alien unless the alien
demonstrates by clear and convincing evidence that the
application has been filed within 1 year after the date of the
alien’s arrival in the United States.” Id. § 1158(a)(2)(B).
Therefore, an alien who fails to satisfy the one-year timeliness
requirement lacks “[a]uthority to apply for asylum.” Id. §
1158(a). Two narrow exceptions exist, however:

       An application for asylum of an alien may be
       considered, notwithstanding subparagrap[h] (B) .
       . . , if the alien demonstrates to the satisfaction of
       the Attorney General either the existence of
       changed circumstances which materially affect
       the applicant’s eligibility for asylum or
       extraordinary circumstances relating to the delay
       in filing an application within the period specified
       in subparagraph (B).

Id. § 1158(a)(2)(D).

       Asylum law also provides severe consequences for filing
a frivolous asylum application. Section 1158 provides in
relevant part:


                                 10
       (d) Asylum Procedure

       (4) Notice of privilege of counsel and
       consequences of frivolous application

       At the time of filing an application for asylum, the
       Attorney General shall –

       (A) advise the alien of the privilege of being
       represented by counsel and of the consequences,
       under paragraph (6), of knowingly filing a
       frivolous application for asylum . . .

       (6) Frivolous applications

       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.

Id. § 1158(d).

        In recognition of “the severe consequences of a finding
of frivolousness under 8 U.S.C. § 1158(d)(6), the corresponding
federal regulations prescribe the parameters within which the IJ


                               11
and the BIA must operate in making these determinations.” Liu
v. U.S. Dept. of Justice, 455 F.3d 106, 112 (2d Cir. 2006)
(Calabresi, J.). Specifically, the regulations state:

       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 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. § 208.20.

       We interpreted this regulation in Muhanna v. Gonzales,
399 F.3d 582 (3d Cir. 2005), and emphasized the distinction
between a finding of frivolousness and a finding of not credible.
We stated that “a finding of frivolousness does not flow
automatically from an adverse credibility determination in any
event.” Id. at 589. The finding of “[i]nconsistencies between
testimony and an asylum application” does not “equate to a


                               12
frivolousness finding under Section 1158(d)(6).” Id. In
Muhanna, we held that, “by imposing a frivolousness finding
based not on a thorough examination of the application but
instead on [the IJ’s] assessment of [the petitioner’s] credibility,
and by consequently refusing to allow further testimony, the IJ
violated [the petitioner’s] rights and deprived [her] of due
process.” Id.

                                B.

       It is worth pausing to emphasize the importance of the
frivolousness standard. Its importance stems not just from the
frequency with which it potentially could arise, see Liu, 455
F.3d at 117, but also from the severity of the consequences
accompanying a finding of frivolousness. To put it bluntly, a
frivolousness finding is a “death sentence” for an asylum-
seeker’s hopes of securing permanent, legal residence in the
United States. Muhanna, 399 F.3d at 588. It renders an asylum
applicant “permanently ineligible for any benefits” under the
immigration laws. 8 U.S.C. § 1158(d)(6). This bar is “[o]ne of
the ‘most extreme provisions’ in the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996,” and, once imposed,
it “‘may not be waived under any circumstances.’” Muhanna,
399 F.3d at 588 (quoting Austin T. Fragomen, Jr., et al.,
Immigration Legislation Handbook § 8:96 (database updated




                                13
April 2004)).3

       In the case at bar, the consequences are particularly
tangible because Petitioner has now married a U.S. citizen, with
whom she has a child. Were it not for the frivolousness finding,
Luciana could apply for a Waiver of Grounds of Inadmissibility
(Form I-601). See United States v. Tinoco-Medina, 6 OCAHO
890, 1996 WL 670175, *19 (1996) (commenting, in a case
where a non-citizen had committed document fraud and had
been convicted of spousal abuse but had submitted an I-601
waiver request, that “[s]ince his wife is a naturalized citizen,
respondent may adjust his status”).

                              III.

       In the case at bar, Petitioner does not contest the denial
of her asylum application on timeliness grounds, or the IJ’s or
BIA’s refusals to grant her withholding of removal or protection
under the CAT. She disputes only the finding that her asylum
application was frivolous.

       We review de novo the BIA’s and IJ’s applications of the


       3
        The permanent bar imposed by 8 U.S.C. § 1158(d)(6)
applies only to discretionary forms of relief and not, therefore,
to withholding of removal or to relief under the Convention
Against Torture. See 8 C.F.R. § 208.20; Muhanna, 399 F.3d at
589.

                               14
legal standard of frivolousness. See Wang v. Ashcroft, 368 F.3d
347, 349 (3d Cir. 2004). Because the BIA affirmed and adopted
the IJ’s opinion, we review the decisions of both the BIA and
the IJ. See Jarbough v. Attorney General, 483 F.3d 184, 191 (3d
Cir. 2007).4

       The IJ established that Petitioner did not file her
application within one year of arrival – a finding she does not
contest – and found no exception applicable.5 The IJ did not,


       4
          We have jurisdiction to review the IJ’s and BIA’s
determinations under 8 U.S.C. § 1252 because the IJ’s
frivolousness determination was reviewed by the BIA and
Petitioner raises it on appeal. See Petitioner’s Br. at 2, 8.
Furthermore, as to materiality – the specific sub-issue of
frivolousness on which we determine the case turns – we agree
with the government that “[P]etitioner appears to contend that
the IJ improperly based its ‘frivolousness finding’ on its adverse
credibility determination, and did not specifically find that
[P]etitioner’s fabricated incident was material to her asylum
application . . . .” Respondent’s Br. at 20.
       5
         Although Petitioner testified that she had been busy
caring for her injured father during her first year in the United
States, and that her parents needed her assistance due to their
limited knowledge of English, the IJ stated that he was “at a loss
to understand why a simple form could not have been prepared,
even in a skeletal fashion and filed with the then INS, even if
[Petitioner] did not have all the supporting documents.” App.
24. Petitioner does not contest the IJ’s finding that neither

                               15
however, end his analysis there. He proceeded to examine the
substance of the application and determined that Petitioner’s
application was frivolous. He stated: “if a review of this record
would determine that the exception to the one-year filing bar
should be invoked, the Court would also have serious problems
with regard to [Petitioner’s] claim, . . . [inter alia] because of the
actions that [Petitioner] took in ratifying the fabricated/material
additions to her application for asylum at the Asylum Office
interview.” App. 25-26. He went on to consider whether
Petitioner’s asylum application was frivolous, weaving together
his discussion of frivolousness with his discussion of credibility.

         The IJ focused on the inclusion in Petitioner’s asylum
application of a false statement that she had been stabbed
because of her religious beliefs – the statement that Petitioner
testified was added by Tony Tju, who prepared her application.6



exception applies.
       6
           The IJ stated:

       While [Petitioner] indicates that the application
       was prepared by Mr. Tju after he received her
       written story, she does not indicate that she did
       not know that the story contained an additional
       factual element that was false, in fact, a factual
       element which would reflect the only incident in
       which [Petitioner] was physically harmed in
       Indonesia allegedly on the basis of a protected

                                 16
He concluded that, were the merits of the asylum application at
issue, he “would enter a mixed credibility finding in this case .
. . .” App. 28. As to frivolousness, however, the IJ did not couch
his views in hypothetical language, instead determining that
Petitioner “is permanently ineligible for any benefits under the
[Immigration and Nationality] Act,” app. 30, and ordering “that
[Petitioner] be deemed an individual who has knowingly filed
an application for asylum which is frivolous in part,” app. 33.
He concluded that “[t]here is absolutely no way that this Court
can in any way absolve [Petitioner] from such a frivolous[ness]
finding.” App. 28.

       The IJ’s frivolousness finding was based on an error of



       ground. [Petitioner’s] actions suggest that, even if
       the original idea to add the additional fact pattern
       was Mr. Tju’s, that participating in the signing of
       the application and, more importantly, ratifying
       the false component of that application at the
       Asylum Officer interview leads the Court to
       conclude that [Petitioner] knowingly participated
       with Mr. Tju in a conspiracy to submit an
       application that was at least in part false in a
       material respect.

App. 26-27. The IJ went on to comment that Petitioner
“indicate[d] that she is a serious Christian, but, nevertheless,
apparently had no problems in submitting a false statement.”
App. 27.

                               17
law. Although we believe there are many other ways in which
the frivolousness finding in this case rests on unsure footing, we
make our determination on a single, simple basis: Petitioner’s
false statement was not material. See 8 C.F.R. § 208.20 (“[A]n
asylum application is frivolous if any of its material elements is
deliberately fabricated . . . .” (emphasis added)).

        Neither the relevant statute nor the regulations define
material, and the caselaw on frivolousness does not provide a
definition. The Supreme Court, however, has conclusively
settled the meaning of the term. In Kungys v. United States, 485
U.S. 759, 769-772 (1988), the Supreme Court discussed the
meaning of “material” at some length. In Kungys, which arose
in the context of an action to revoke citizenship, the Court
considered “whether certain misrepresentations or concealments
made by Kungys in connection with his naturalization
proceeding were material.” Id. at 763. The Supreme Court
reviewed dictionary definitions and historical uses of the term,
and endorsed the following definition: “[A] concealment or
misrepresentation is material if it has a natural tendency to
influence, or [is] capable of influencing, the decision of the
decisionmaking body to which it was addressed.” Id. at 770
(internal quotation marks omitted); see also United States v.
Wells, 519 U.S. 482, 489 (1997) (same).

      In the case at bar, the falsehood had neither the natural
tendency nor the capability of influencing the decision of either



                               18
the Asylum Officer, the IJ or the BIA.7 Because Petitioner’s
asylum application was untimely, she could not be granted
asylum unless her case fell under an exception to the time limit.
See 8 U.S.C. §§ 1158(a)(2)(B), (a)(1). Once it became clear that
no exception applied, her application had to be rejected as time-
barred. Evidence going to the merits of the application – such as
Petitioner’s story about the stabbing – was of no consequence,
no matter how persuasive or compelling it might have been.
Such evidence was totally incapable of influencing the decision-
makers, and therefore it was not material. From all this there is
but one logical conclusion: because Petitioner’s statement was
not material, it was an error of law to conclude that her
application was frivolous.

        Because we determine that the falsehood on which the
IJ based his frivolousness finding was not material, and
therefore the finding was erroneous as a matter of law, we need
not consider whether 8 U.S.C. § 1158 provides authority to issue
a frivolousness finding in the context of an untimely asylum
application. We note, however, that the existence of such
authority is far from clear. An individual lacks “[a]uthority to
apply for asylum” if her application is untimely and no
exception to the one-year bar applies. 8 U.S.C. § 1158(a). If an
individual lacks authority to apply for asylum, any application
for asylum would seem to be a nullity, preventing the IJ from


       7
        It is not necessary to determine which of Petitioner’s
statements indeed was false – her initial story or her recantation.

                                19
reaching the merits of the asylum application and assessing
whether “any of its material elements is deliberately fabricated.”
8 C.F.R. § 208.20.8

                               IV.

                               A.

        A recent BIA decision and associated opinions of the
Court of Appeals for the Second Circuit raise additional
questions about the propriety of the IJ’s frivolousness finding in
the case before us that deserve some comment here. In Liu, 455
F.3d at 106, our sister Court of Appeals considered a
frivolousness finding. Stating that it found itself confronted by
issues with which it dealt infrequently and “on which the BIA
has, thus far, provided no substantial guidance,” id. at 110, the
court remanded the case “to give the BIA an opportunity, in the
first instance, to formulate standards for deciding when an
asylum seeker’s application may be deemed frivolous,” id. at
108.

       On remand, the BIA reversed its prior decision, vacating


       8
        Additionally, in the case of an untimely application, 8
U.S.C. § 1158(a)(2)(D) states that the application “may be
considered” if one of the stated exceptions applies. This
language may fairly imply that an application may not be
considered if an exception does not apply.

                               20
the IJ’s frivolousness finding. See In re Y-L-, 24 I. & N. Dec.
151 (BIA 2007). In so doing, the Board stated that “the
following requirements” must be met in reaching a frivolousness
finding:

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

Id. at 155.

       The BIA elaborated on each of these four procedural
safeguards. As to the notice requirement, the BIA stated that 8
U.S.C. § 1158(d) and 8 C.F.R. § 208.20 “require that the
Attorney General advise the alien at the time of filing an asylum
application of the consequences of filing a frivolous application,
i.e., permanent ineligibility for any benefits under the
Immigration and Nationality Act except for withholding of
removal.” Id. The BIA noted that the asylum application form,
I-589, contains a standard warning that “‘[a]pplicants


                               21
determined to have knowingly made a frivolous application for
asylum will be permanently ineligible for any benefits under the
Immigration and Nationality Act’”; the BIA did not, however,
state “whether this notice alone would suffice under the notice
requirement.” Yang v. Gonzales, --- F.3d ---, 2007 WL 2177116,
*7 n.3 (2d Cir. 2007) (quoting Y-L-, 24 I. & N. Dec. at 155).

       As to the second safeguard, the BIA stated that “the
Immigration Judge must separately address the question of
frivolousness, including a discussion of the evidence supporting
a finding that the respondent deliberately fabricated a material
element of the asylum claim.” Y-L-, 24 I. & N. Dec. at 156.9 In
Y-L-, the IJ included two paragraphs finding that the asylum
applicant had deliberately fabricated an account of an abortion
and illegal adoption, and addressed the materiality of the
fabrications. Id. at 157.

        With regard to the third safeguard – requiring “sufficient
evidence in the record to support the finding that a material
element of the asylum application was deliberately fabricated,”
id. at 155 – the BIA stated:

After taking into account the respondent’s explanations


       9
        Later in the opinion, the BIA noted that the regulation
mandates “specific findings of deliberate fabrication of a
material element of the asylum application . . . ” Y-L-, 24 I. & N.
Dec. at 158.

                            22
for discrepancies or implausible aspects of the claim, ...
the Immigration Judge must provide cogent and
convincing reasons for finding by a preponderance of the
evidence that an asylum applicant knowingly and
deliberately fabricated material elements of the claim.

Id. at 158 (emphasis added). The Board stated that the regulation
“plac[es] the ultimate burden of proof on the Government . . . .”
Id.

        With regard to the fourth safeguard – requiring that an
asylum applicant be “afforded sufficient opportunity to account
for any discrepancies or implausible aspects of the claim” – the
Board stated that “it would be a good practice for an
Immigration Judge who believes that an applicant may have
submitted a frivolous asylum application to bring this concern
to the attention of the applicant prior to the conclusion of
proceedings.” Id. at 159-160 (emphasis added). As the Court of
Appeals for the Second Circuit has since observed, the BIA,
later in the opinion, appears to treat this recommendation as a
requirement, at least in some cases. See Yang, 2007 WL
2177116 at *5 (“Later in its opinion . . . the BIA appears to
require such an action in cases where it would not be obvious to
an applicant that such a finding was being considered.”).10


       10
         In Y-L-, the BIA ultimately determined that the IJ had
not taken into account the petitioner’s explanations for
inconsistencies, and so had fallen short of Y-L-’s fourth

                               23
        The Court of Appeals for the Second Circuit considered
the Y-L- standard in Yang. Id. at *5. The court noted that
ambiguities about how to apply the statute and regulations
“remain even after Y-L-,” and chose again “to remand . . . for the
BIA to interpret and apply the standards it set forth in Y-L- in the
first instance.” Id. at *7. On remand, the court instructed the
BIA to consider:

       inter alia, the following issues: (1) to what extent
       the IJ is required to set out his or her factual
       findings to support a frivolousness determination
       separately from the adverse credibility
       determination and to what extent he or she is
       permitted to incorporate by reference the findings
       made to support an adverse credibility
       determination; (2) to what extent the IJ is required
       to consider the applicant’s explanations for any
       discrepancies separately from the adverse
       credibility determination; (3) to what extent the IJ
       is required to explicitly find that the fabrications
       at issue were “deliberate” or “material”; and (4) 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.


requirement. See Y-L-, 24 I. & N. Dec. at 162.

                                24
Id. at *8. The case is currently before the BIA.11

                                B.

        The BIA’s decision in Y-L- suggests that there may be
problems with the IJ’s frivolousness finding apart from the error
in finding Petitioner’s false statement “material.” First, it is not
apparent that Petitioner received notice “of the consequences of
filing a frivolous application” as required by Y-L-, 24 I. & N.
Dec. at 155. Although Petitioner’s application contained a
standard warning about frivolousness, the BIA has not stated
“whether this notice alone would suffice under the notice
requirement.” Yang, 2007 WL 2177116 at *5 n.3.



       11
          We are in agreement with the panel in Yang that many
of the precise contours of frivolousness remain unsettled.
Furthermore, we share the panel’s hope of obtaining guidance
on proper application of the Y-L- safeguards from the Board.
Nevertheless, we take a different approach in this case. Our
decision to forge ahead ourselves rather than remanding to the
BIA is influenced by the nature of the issue presented in the case
at bar – a relatively narrow issue of law that is for this Court to
decide, standing apart from the intricacies of immigration
procedure. Additionally, the controlling issue here – the
meaning of “material” – is relatively distinct from the questions
posed to the BIA in Yang, 2007 WL 2177116 at *8, and so we
believe our analysis will not interfere with or unduly complicate
the resolution of that case.

                                25
       Second, as the Court of Appeals for the Second Circuit
has noted, “the BIA appears to require” that the IJ bring to an
applicant’s attention the possibility that her application may be
found frivolous “in cases where it would not be obvious to an
applicant that such a finding was being considered.” Id. at *5
(emphasis in original). Were we not resolving this case on
materiality grounds, we would want to consider the impact of
this potential requirement.

        Third, Y-L- requires an IJ to make a “specific finding ...
that the alien knowingly filed a frivolous application.” Y-L-, 24
I. & N. Dec. at 155. To satisfy this requirement, “the
Immigration Judge must separately address the question of
frivolousness, including a discussion of the evidence supporting
a finding that the respondent deliberately fabricated a material
element of the asylum claim.” Id. at 156 (emphasis added). In
the case at bar, the IJ melded together his discussion of
credibility and his discussion of frivolousness. Such combined
discussion may fall short of the separateness requirement.

       We leave these and other questions about frivolousness
for future resolution. In the case at bar, Petitioner’s false
statement lacked the capacity to influence the decision of either
the Asylum Officer or the IJ once her asylum application had
been found time-barred, and so the statement was not material.

                               V.



                               26
       Our decision today is driven by the bare force of logic,
but we also consider that the outcome here is a just one. Courts
are not merely cogs in a system of “mechanical jurisprudence.”
R. Pound, Mechanical Jurisprudence, 8 Colum. L. Rev. 605
(1908). The “jurisprudence of conceptions
(Begriffsjurisprudenz)” has been superseded “by a jurisprudence
of results (Wirklichkeitsjurisprudenz).” Id. at 610; see Julius
Stone, Jurisprudence, 75 Harv. L. Rev. 1240, 1241 (1962).12


       12
          Consider modern-day tort law’s rejection of long-
standing conceptions of negligence and defamation. In the first
opinion advocating what is now known as products liability, a
concurring opinion in Escola v. Coca Cola Bottling Co. of
Fresno, 24 Cal. 2d 453 (1944), Justice Roger Traynor
commented: “It is to the public interest to discourage the
marketing of products having defects that are a menace to the
public. If such products nevertheless find their way into the
market it is to the public interest to place the responsibility for
whatever injury they may cause upon the manufacturer, who,
even if he is not negligent in the manufacture of the product, is
responsible for its reaching the market.” Id. at 462 (Traynor, J.,
concurring).
       Consider, also, the Supreme Court’s comments in New
York Times v. Sullivan, 376 U.S. 254 (1964). Notwithstanding
centuries of fealty to conceptual defamation, the Supreme Court
produced a sea change in that case. Writing for the Court,
Justice William J. Brennan, Jr., said: “[W]e consider this case
against the background of a profound national commitment to
the principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement,

                                27
        When a modern-day court confronts a case, it has been
said that “the first question should be, how will a rule or a
decision operate in practice?” Pound, supra, at 610
(summarizing the approach of Rudolph von Ihering, a pioneer
of Wirklichkeitsjurisprudenz). We no longer believe that
“[o]bviously a principle, if sound, ought to be applied wherever
it logically leads, without reference to ulterior results.” Gluck v.
City of Baltimore, 32 A. 515, 517 (1895). Indeed, we now
recognize that there are “dangers” in “extend[ing] a maxim or a
definition with relentless disregard of consequences to ‘a dryly
logical extreme.’” Hynes v. New York Cent. Ry. Co. 231 N.Y.
229, 235 (1921) (Cardozo, J.).13 In many cases, “[t]he true
grounds of decision are considerations of policy and of social
advantage, and it is vain to suppose that solutions can be
attained merely by logic and general propositions of law which
nobody disputes.” Vegelahn v. Guntner, 167 Mass. 92, 106
(1896) (Holmes, J., dissenting).

       In the case at bar, the IJ found Petitioner to have
committed a serious wrong: she ratified a false statement
contained in her asylum application. This is a wrong we cannot
condone. Immigration proceedings, like almost all legal


caustic, and sometimes unpleasantly sharp attacks on
government and public officials.” Id. at 270.
       13
        Judge Cardozo wrote this opinion the year he delivered
the Storrs Lecture at Yale Law School, which later was
published as The Nature of the Judicial Process (1921).

                                28
proceedings, depend on the ability of decision-makers to find
the truth. Lies undercut immigration proceedings just as they do
proceedings in state and federal courts. Without the truth, the
judicial edifice turns to a house of cards.

       But Petitioner’s misdeed will not go unpunished. Her
asylum application has been denied. The IJ’s order for her
removal – issued, ultimately, because she voluntarily came
forward to apply for asylum – stands. Any possibility she has of
ever living legally and permanently with her family in the
United States now hangs on the willingness of the Attorney
General to grant her a waiver. Such waivers are far from a
certainty. See, e.g., Howell v. INS, 72 F.3d 288 (2d Cir. 1995)
(holding that a district court lacked jurisdiction to review the
Immigration and Naturalization Service’s refusal to grant a
waiver of a ground of inadmissibility in the case of a Jamaican
woman married to a U.S. citizen).

        By additionally issuing a frivolousness finding, the IJ
brought down on Petitioner a lifetime ban on all means of
legally entering the United States. This punishment falls not
only on her, but on her husband and child as well. Because
modern jurisprudence recognizes the importance of results, it
would seem that the various IJs and the BIA should at least
consider the consequences of the draconian penalty attached to
a finding that the application for asylum is frivolous, particularly
where, as here, the finding may cause the family structure of the
applicant to be permanently ruptured.


                                29
                           *****

        Accordingly, because we determine as a matter of law
that Petitioner’s application for asylum was not frivolous, we
grant the petition for review and remand this case to the BIA for
further proceedings consistent with this opinion.




                               30
