BIA (2-1) on Frivolousness: Matter of M-M-A-

Matter of M-M-A-, 28 I&N Dec. 494 (BIA 2022)

When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.

BEFORE: Board Panel: WILSON and GOODWIN, Appellate Immigration Judges. Dissenting Opinion: GREER, Appellate Immigration Judge.

DISSENTING OPINION: Anne J. Greer, Appellate Immigration Judge: "I respectfully dissent. I conclude that Immigration Judges retain discretion over whether to initiate a frivolousness inquiry under Matter of Y-L-, 24 I&N Dec. 151, 155–60 (BIA 2007). In my view, an Immigration Judge is not required to engage in the frivolousness analysis, but may elect to do so based on her independent judgment. The majority has created an unwarranted expansion of the application of the Immigration and Nationality Act’s frivolousness provision, which is contrary to statute, regulations, and case law. I would uphold the Immigration Judge’s judgment in this case and dismiss the appeal. By not doing so, we disable Immigration Judges from exercising their discretion in this regard. ... "