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Matthew Kolken on Deportation And Removal

Board of Immigration Appeals Update

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The Board of Immigration Appeals (BIA) just issued the following precedent decision that clarifies a previous decision relating to the standards required for a proper determination of whether an asylum application is frivolous.

Matter of B-Y-, 25 I&N Dec. 236 (BIA 2010) Interim Decision # 3680

(1) In making a frivolousness determination, an Immigration Judge may incorporate by reference any factual findings made in support of an adverse credibility finding, so long as the Immigration Judge makes explicit findings that the incredible aspects of the asylum application were material and were deliberately fabricated. Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), clarified.

(2) In considering an asylum applicant's explanations for inconsistencies or discrepancies, an Immigration Judge making a frivolousness determination must separately address the applicant's explanations in the context of how they may have a bearing on the materiality and deliberateness requirements unique to that determination.

(3) When the required frivolousness warnings have been given to an asylum applicant prior to the merits hearing, the Immigration Judge is not required to afford additional warnings or to seek further explanation in regard to inconsistencies that have become obvious during the course of the hearing.

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