Liu v. Holder: Frivolous Asylum Applications

by Jason Dzubow

The Ninth Circuit recently examined “the distinction between an applicant for asylum whose testimony lacks credibility and one who has ‘deliberately fabricated’ material aspects of her application. See Liu v. Holder, No. 08-72849 (9th Cir. Feb. 23, 2011).  The Court held:

“[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.

The Court ultimately concluded that whether an alien submitted a frivolous asylum application is a “distinct question requiring a separate analysis.”

In examining Ms. Liu’s case, the Court found that the Board’s adverse credibility finding was supported by substantial evidence.  However, “a finding of frivolousness does not flow automatically from an adverse credibility determination.”  The Court noted four substantive requirements that distinguish an adverse credibility finding from a finding of frivolousness:

First, an asylum application may be deemed frivolous only if it contains a deliberate fabrication, and the applicant has thus perpetrated a fraud on the court.  Second, a frivolousness determination requires a finding that a “material element” of the claim was fabricated, whereas an adverse credibility determination may be supported by an inconsistency or apparent falsehood that merely relates to a material element of the claim.  Third, although the “applicant for relief from removal has the burden of demonstrating that he or she meets all of the requirements” for such relief, the burden shifts to the government to prove the applicant has filed a frivolous application.  Fourth, a frivolousness finding requires a stronger evidentiary showing than an adverse credibility finding: frivolousness must be proven by a preponderance of the evidence, whereas an adverse credibility finding must be supported only by substantial evidence.

Besides the substantive requirements, there are also procedural requirements for a finding of frivolousness.  In Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), the Board set forth four procedural requirements for a frivolous 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.

In other words, it’s not easy to have your asylum case found frivolous.  This is as it as it should be, given the harsh consequences for a frivolous finding.

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Must Attorneys Always Ask Their Clients About FGM?

by Jason Dzubow

In a strongly-worded dissenting opinion, Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit Court wrote that an immigration attorney provided ineffective assistance of counsel for failing to ask her client about whether the client had been subject to female genital mutilation (“FGM”).

In Teclezghi v. Holder, Nos. 07-70661 & 07-71463 (9th Cir. Jan. 4, 2011), Judge Pregerson writes:

An attorney representing an asylum seeker has a duty to investigate all grounds upon which an applicant may be entitled to relief… [and must] inquire as to whether her female client has suffered female genital mutilation when (1) nearly 90 percent of women in the client’s home country endure such a brutal procedure, and (2) it is well-settled that female genital mutilation constitutes persecution sufficient to warrant a grant of asylum.

The Judge concludes by rejecting the majority’s reasoning that an attorney should not be required to inquire about something as personal as FGM:

The panel majority fails to recognize that most political asylum applications are intensely personal, often painful, and may involve questions of sexual torture, rape, and humiliation. It is entirely expected that clients may not want to readily reveal such circumstances to their attorneys. It is precisely because the subject matter of an asylum claim based on female genital mutilation is so intensely personal and our immigration system so complex that an attorney has a special responsibility to adequately explain to her female clients their rights to asylum and diligently investigate all grounds for relief. The panel majority’s decision allowing attorneys to forego investigating intensely personal facts in an asylum claim diminishes the attorney’s role in the asylum process. Our precedent tells us that competent attorney performance requires more. I believe that our court should instill a greater sense of professional responsibility in attorneys who represent asylum seekers.

It’s a powerful argument–and a cautionary tale for those of us who represent women from countries where FGM is widespread.  If Judge Pregerson’s position were adopted, attorneys would be required to ask about FGM not just in asylum cases, but also for clients seeking other forms of relief.  And we would–I suppose–be required to file FGM-based asylum applications for all clients who have been victims of the practice.  I have mixed feelings about this.

An anti-FGM poster in Kenya.

One problem is that it takes considerable time to develop an asylum case; particularly a case based on FGM.  For private attorneys, we would need to charge money for this time.  For non-profit attorneys, more time on one case means taking fewer cases overall.  Thus, fewer asylum seekers would be represented. 

Another problem is that adding an additional claim for relief may weaken the overall case.  It’s a question of strategy, but generally, if I have a strong basis for relief, I would rather not include a second, weaker claim for relief.  The weaker application tends to distract from the stronger, and increase the odds that both applications will fail.  Under the regime outlined by Judge Pregerson, I might feel obliged to include the FGM claim, even if I felt it would distract from the main focus of the case (if only for CYA–cover your ass–purposes).

On the other hand, if asylum might be available to a client based on FGM, the lawyer has a duty to at least explore that option.  I think it goes too far to label an attorney “ineffective” for failing to file an FGM asylum claim, especially where the attorney determines that such a claim is not the best strategy for the case.  However, where the attorney fails to ask about FGM when the client hales from a country where that practice is prevalent, there is a good argument that the attorney has provided ineffective assistance of counsel.

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Singh v. Holder: Is Attorney Error to Blame?

by Jason Dzubow

A recent decision by the Ninth Circuit reveals how attorney error can destroy an alien’s asylum case.

In Singh v. Holder, No. 08-70434 (9th Cir. April 19, 2010), the Ninth Circuit concluded that an IJ may require corroborating evidence even where an alien has testified credibly.  In the underlying case, the question before the IJ was whether Mr. Singh had filed for asylum within one year of his arrival in the United States (in general, an alien who does not file for asylum within one year of arriving in the U.S. is ineligible for asylum).  The IJ found that Mr. Singh testified credibly about his arrival date in the U.S., but the IJ concluded that Mr. Singh had failed to prove his entry date by “clear and convincing” evidence because he did not submit any additional evidence of his entry date.

The Ninth Circuit found that the IJ could require corroboration of the entry date.  The Court held:

With section 1158(b)(1)(B)(ii) [the REAL ID Act], Congress has expressly empowered the IJ to require corroborating evidence even when the applicant has provided otherwise credible testimony. Should the applicant fail to offer corroboration, the IJ may conclude that despite the applicant’s credible testimony, he has failed to meet his burden of demonstrating that he is entitled to asylum relief. Accordingly, the IJ’s conclusion that Singh’s uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper.

This result is not that surprising.  The REAL ID Act, which went into effect on May 11, 2005, provides that, “Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.”  In Singh, the Court concluded that evidence corroborating Mr. Singh’s entry date was readily available:

This is the sort of fact which is “easily subject to verification,'” whether by some form of official documentation or by supporting documents of a more informal variety, i.e., affidavits or letters from family, friends, or traveling companions.  Travelers typically accumulate paper as they move, such as receipts from gas stations, motels, and restaurants, and often take snapshots providing dating information, and reaching a refuge from persecution might well generate a particular desire to preserve souvenirs of arrival. Accordingly, it is eminently “reasonable to expect” an applicant to provide some corroborating evidence of his date of entry

While I am not sure I agree that people fleeing persecution “typically accumulate paper as they move,” Mr. Singh should at least have tried to get evidence concerning his entry.  Had he made an effort to obtain corroboration, he would likely have satisfied the REAL ID Act’s requirement to either obtain the evidence or demonstrate that the evidence is not reasonably available.

The REAL ID Act went into effect in 2005.  According to the Ninth Circuit decision, the IJ informed Mr. Singh’s counsel at an initial hearing to obtain evidence concerning the date of entry.  Either Mr. Singh’s attorney asked his client for the evidence or he did not.  If he asked and Mr. Singh failed to make any effort to obtain the evidence, then Mr. Singh is to blame for the loss.  If the attorney failed to instruct Mr. Singh to get evidence, then the attorney is to blame.

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