Kulakchyan v. Holder

Misrepresentation concerning the date of entry in an asylum application is material; under 8 U.S.C. § 1158(d)(6), withdrawal of an application alone may suffice for the Board of Immigration Appeals to find an application frivolous.

Petitioner, a native and citizen of Armenia, uttered a false arrival date both during her interview and on her application for asylum. After withdrawing her request for asylum, she instead sought an adjustment of status and a “§ 212(i) waiver” under 8 U.S.C. § 1182(i). Petitioner requested review of the Board of Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) decision pronouncing her asylum application frivolous thus rendering her statutorily barred from adjustment of status and waiver. Misrepresentation in an asylum application concerning the date of entry is material, going “to the very question of whether [her] application was time-barred in the first instance.” Kailu v. Mukasey. The Ninth Circuit found no merit in petitioner’s argument that her falsified entry date was immaterial. Petitioner’s argument she did not receive “thorough” translations of the warnings also failed. The application and the warnings were read to petitioner in her native language. The panel held the record contained substantial evidence to sustain the BIA’s finding that petitioner was given adequate warnings concerning potential consequences for filing a frivolous asylum application. Relying on Matter of X-M-C, the BIA interprets 8 U.S.C. § 1158(d)(6) to hold, “the only action required to trigger a frivolousness inquiry is the filing of an asylum application.” Thus a petitioner recanting false statements or withdrawing her application does not prevent the IJ and BIA from finding that original application frivolous. The panel gave Chevron deference to BIA’s statutory interpretation. PETITION DENIED.