The Immigration and Nationality Act strips federal courts of jurisdiction to review decisions “specified under 8 U.S.C. §§ 1151-1381 to be in the discretion of the Attorney General,” except for asylum determinations. Even if this court accepts for the sake of argument (though not argued by either party) that 8 U.S.C. § 1252 applies to motions for reconsideration, that would not preclude review of the instant case as the petition before this court raises a question of law, a statutory exception to the jurisdiction-stripping provision.
This court finds that when an immigration judge determines that an asylum application is time barred, it does not preclude the judge from also finding that the same application is frivolous.
Nothing in 8 U.S.C. § 1158(d)(6) says that an immigration judge may enter a frivolousness finding only when the application is timely filed or otherwise free of statutory bars. All it says is that an immigration judge may find an application frivolous upon determining that an alien, on notice of the consequences of making a frivolous filing, knowingly made a frivolous application for asylum. The statute does not contain an inflexible order of battle—to the effect that immigration judges must address the statutory bars first and, once they do, may no longer make a frivolousness finding if a statutory bar applies. The statute, indeed, does not confine the judge’s authority to make a frivolousness finding only to the merits of the application, as opposed to the procedural hurdles that an applicant must clear before the agency will consider his application. So far as the words of the statute are concerned, they permit the immigration judge to make a frivolousness finding about the merits of the asylum application (because the applicant, say, falsely claims that he has a well-founded fear of persecution in his home country) and about the timeliness of it (because the applicant, say, falsely claims that country conditions have changed, which would otherwise excuse the one-year filing requirement).
Nor is the time-bar provision akin to a restriction on subject matter jurisdiction that might require the immigration judge to address the procedural and substantive claims in a prescribed sequence.
There is nothing in the statute that prohibits the judge from reaching the merits of the asylum application in part as an alternative ground for decision or for that matter from ruling on the merits rather than on a time-bar question if the merits offer a more straightforward ground for decision. While federal judges generally may not assume away a difficult question of subject matter jurisdiction in order to reach an easy merits-determination, the immigration statutes place no comparable constraint on an immigration judge.
It is true that the statute at 8 U.S.C. § 1158(a)(2)(D) says that time-barred applications may be considered if the alien shows changed circumstances, and that of course suggests, in the absence of the exception, that the time bar applies. But that is not the same as stripping the agency of jurisdiction to exercise its authority in a variety of ways: to issue alternative rulings, to reach the merits question first or to make a frivolousness finding with respect to a time-bar argument itself. Indeed, to treat the time bar as jurisdictional in the instant case seems particularly odd given that the immigration judge plainly had jurisdiction to reach the merits of the petitioner’s withholding-of-removal and CAT claims.
The implementing regulations at 8 C.F.R. § 1208 also fail to place any such restriction on the immigration judge. They likewise say that an applicant is subject to a frivolousness determination upon a specific finding that the alien knowingly filed a frivolous asylum application. An asylum application is frivolous if any of its material elements is deliberately fabricated.
So far as the regulations are concerned, an immigration judge may make this finding whenever an alien files a frivolous application, regardless of whether the judge ultimately denies the application on statutory-bar or substantive grounds. The judge simply needs to ensure that the finding relates to a “material” element of the application, one that was material at the time the application was “made.”
Principles of administrative deference re-enforce this conclusion. It is well settled that Chevron deference applies to the Board’s interpretations of the Immigration and Nationality Act, as it gives ambiguous statutory terms concrete meaning through a process of case-by-case adjudication.
Invoking the Attorney General’s authority to provide “controlling” answers to “questions of law” arising under the Act, 8 U.S.C. § 1103(a)(1), the Board in the instant case expressly determined that an immigration judge could make a frivolousness finding with respect to a time-barred application. The BIA concluded that nothing in the statutory or regulatory regime divests an immigration judge’s authority to make a finding of “frivolousness” on a statutorily barred application, and that an asylum application is subject to a bar does not mean that a deliberately fabricated element of the claim is not ‘material’ within the meaning of 8 C.F.R. § 1208, particularly since the fabricated material element could also influence a grant of withholding of removal or protection under the Convention Against Torture.
The BIA’s first explanation is entitled to Chevron deference, as it reflects the BIA’s reasonable construction of a statute that Congress empowered the agency authoritatively to construe. The BIA’s second explanation is entitled to near-conclusive Seminole Rock deference as it reflects the BIA’s construction of its own regulations, namely the meaning of “material” elements of a claim.
Not only is the BIA’s position entitled to Chevron and Seminole Rock deference, but it also has the virtue of being consistent with a premise of related case law in our circuit. In the past, this court of appeals has upheld frivolousness findings even after the petitioner offered to withdraw an application voluntarily. The absence of an application does not obviate the need for the IJ to determine whether his false application should be deemed “frivolous.”
This court of appeals does not agree with the Third Circuit’s findings in Luciana v. Att’y Gen. of the U.S., 502 F.3d 273 (3d Cir. 2007) that it is far from clear whether 8 U.S.C. § 1158 provides authority for an immigration judge to issue a frivolousness finding in the context of an untimely asylum application, and that any deliberate fabrications that go to the merits of the application are not “material” because they cannot influence the disposition of an asylum application already barred by statute. The Third Circuit did not consider a dispositive ground for embracing the Board’s decision—agency deference—and may not even have had a BIA determination on the issue in front of it. By contrast, in the instant case, the BIA expressly rejected the Third Circuit’s reasoning which is in tension with related case law of this circuit, finding nothing in the statutory or regulatory regime that supports its position.
The Third Circuit’s reasoning is faulty. If the Third Circuit is right that a frivolousness finding is no longer “material” once the immigration judge decides that it is time barred, the same would be true if the judge decided that the application failed on a distinct merits ground, whether related to the underlying frivolousness finding or not. For once that other ruling is a possibility, the same potential lack-of-materiality problem raises its head. But immigration judges frequently offer a host of merits-related grounds for rejecting an asylum application, and they should be permitted to do so without compromising their authority to make a frivolousness finding when appropriate.
The time-bar provision, it is true, does not disclaim the possibility that the statutory bars are jurisdictional. But neither does it say they are. The immigration judge plainly had jurisdiction over the merits of the asylum application at the time it was filed. And the reality that the judge identified a time bar did not prohibit it from reaching the frivolousness question any more than it would have prevented the judge from issuing an alternative merits ruling in the event his time-bar ruling was incorrect.
There is nothing gratuitous in imposing the penalty of filing a frivolous asylum application in addition to denying it on the ground of time barred. A petitioner who filed an untimely frivolous application should not be treated better than an applicant who filed a timely frivolous application. However, to say that immigration judges may make a frivolousness finding in the context of a time-barred application is not to say that they should. The finding has serious consequences for the applicant, and there is reason to worry that applicants (and their lawyers) may not defend themselves as well as they should in the context of an application that already is going nowhere.
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