On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-309-486
The opinion of the court was delivered by: Fisher, Circuit Judge:
Argued and Submitted March 10, 2010-Seattle, Washington
Before: Raymond C. Fisher and Marsha S. Berzon, Circuit Judges, and G. Murray Snow, District Judge.*fn1
This appeal concerns the distinction between an applicant for asylum whose testimony lacks credibility and one who has "deliberately fabricated" material aspects of her application, and focuses on the heightened protections that condition the latter finding. "[A]n asylum application is frivolous if any of its material elements is deliberately fabricated." 8 C.F.R. § 1208.20. If found to have "knowingly made a frivolous application for asylum," an applicant will be "permanently ineligible for any benefits under [the Immigration and Nationality Act]," including asylum relief. 8 U.S.C. § 1158(d)(6). Given these harsh consequences, the distinctions between the requirements for an adverse credibility determination and a frivolousness finding are of critical importance.
In this case, we hold that substantial evidence supports the Board of Immigration Appeals' (BIA) denial of petitioner's asylum and withholding of removal claims based on petitioner Yan Liu's lack of credibility. However, whether Liu submitted a frivolous asylum application is a distinct question requiring a separate analysis. Although the grounds cited for the adverse credibility determination overlap to some extent with the grounds cited for the frivolousness finding, the heightened requirements for the latter finding were not met. Liu was not given an adequate opportunity to address all the grounds for the frivolousness finding, and those she was able to address are insufficient, standing alone, to support the frivolousness determination. Accordingly, we grant Liu's petition in part.
Liu is a native of China who arrived in the United States on April 18, 2000. Her mother had arranged the trip with smugglers. At Liu's airport interview, she told the immigra- tion officer she left China because there were no jobs, and the wages were inadequate for her to support her parents. When asked if she feared being sent back, she said she would be arrested and beaten, and would not "be treated like a human being."
On April 25, Liu was interviewed by an asylum officer and, for the first time, she mentioned the Falun Gong.*fn2 She told the officer she left China because, "I have no work in China and I am involved with the Falun Gong," and said if she returned, she would be "captured and put in jail." Asked why she did not mention the Falun Gong at her airport interview, she said she was tired, scared, confused and worried that she would be sent back if she discussed it. The asylum officer found her to be credible.*fn3
In February 2001, after an asylum hearing at which Liu testified and introduced evidence, the IJ denied Liu's application. The IJ first ruled (erroneously) that Liu could not qualify for asylum or withholding of removal because her membership in Falun Gong fell within neither the "particular social group" nor "political opinion" categories.*fn4 The IJ further concluded that Liu did not meet the requirements for relief under the Convention Against Torture. The IJ alternatively denied Liu's asylum and withholding of removal claims based on an adverse credibility determination, citing several grounds for her finding that Liu was not a credible witness.
First, the IJ noted a date discrepancy. Liu testified that her uncle, with whom she lived, taught her about Falun Gong, and initially said he was arrested for his Falun Gong practice in the middle of August 1999. Later, however, she gave the date of his arrest as September 3, 1999. Both dates conflicted with a letter submitted by Liu, purportedly written by her uncle, that stated that he was arrested on September 28, 1999. Liu explained that his letter was generally reliable but that "maybe he is kind of screwed up with the time." The IJ was not persuaded, and found the discrepancies undermined Liu's credibility.
Second, the IJ found that Liu's failure to mention Falun Gong during her initial airport interview called her credibility into question. Liu explained that she did not fully understand the translation, was "tired and fatigued" after her travels, and, when she saw people being sent back, felt too scared to "answer what [she] really want[ed] to say." The IJ did not believe Liu's explanation, but instead concluded that she had made up her involvement with Falun Gong after obtaining counsel.
Third, the IJ thought it suspicious that Liu's uncle's letter mentioned practicing Falun Gong with a group in a park, but did not specify that he had practiced there with Liu, as she had testified. The IJ concluded that Liu's explanation for the omission - that she had secretly followed her uncle to the park and hidden behind others so she could practice with his group without his knowledge - was not credible. Finally, the IJ concluded that Liu's uncle's letter appeared fabricated because it stated that Falun Gong was outlawed in September 1999, whereas country reports state that it became illegal in July 1999.
After making the adverse credibility determination, the IJ "further ma[de] a finding that the applicant ha[d] filed a frivolous asylum application." The IJ's decision specified four grounds for the frivolousness finding, including the conflicting dates of Liu's uncle's arrest she previously cited as a ground for her adverse credibility determination.*fn5 The three other grounds were, however, distinct from those previously discussed with regard to the IJ's adverse credibility determination.
First, the IJ noted that the letter from Liu's uncle said she had gone into hiding in various places and did not dare go out in public during the day, whereas Liu testified that she worked part-time in those places. Second, although the letter stated that police released Liu's uncle with orders to turn his niece in or face severe punishment, the IJ saw "no evidence that he was punished severely as a consequence of his failure to turn his niece in." Third, the IJ found Liu's testimony about the time period during which she practiced Falun Gong to be internally inconsistent. She noted that Liu told the asylum officer she stopped practicing Falun Gong in June 1999, but in the next sentence said she stopped practicing in the middle of August 1999.
In 2003, the BIA affirmed the IJ's decision "to the extent that the Immigration Judge found that the respondent failed to establish any basis for a valid claim under the Convention Against Torture, that she gave testimony that was not credible in support of her applications for relief from removal, and that she filed a frivolous asylum application." While Liu's appeal to this court was pending, the government submitted an unop-posed motion to remand in light of the BIA's decision in In re Y-L-, 24 I. & N. Dec. 151 (B.I.A. 2007), which ...