However, Ghazali does not control the present case. The difference is that Ghazali (and Board precedent to similar effect, such as Matter of X–M–C–, 25 I. & N. Dec. 322, 324–26 (BIA 2010)) involved an asylum application that was meritless or mooted on grounds unrelated to the misrepresentation, not an application that was indisputably meritorious on grounds unrelated to the misrepresentation. If an application must fail for more than one reason, it may be reasonable under Chevron for the Board to pick one of its multiple fatal flaws—purposeful falsity, as opposed to a time-bar, for example—to support a determination that the application is “frivolous” under 8 U.S.C. § 1158(d)(6). But it is much more difficult to justify a determination that an application is “frivolous” due to incidental falsity if the application unquestionably has merit, irrespective of the falsity.
By unpublished opinion dated August 30, 2010, the BIA addressed this Court's questions and again dismissed Zheng's appeal from the IJ's frivolousness finding. Now, Zheng challenges the BIA's conclusion that a withdrawn application can serve as the basis of a frivolousness finding and that an IJ lacks discretion as to whether to enter such a finding when the statutory and regulatory preconditions have been met. For the reasons set forth below, we conclude that the BIA's determination, pursuant to its published opinion in Matter of X–M–C–, 25 I. & N. Dec. 322 (B.I.A.2010), that a withdrawn application can serve as the basis for a frivolousness finding is reasonable. We are not persuaded by the BIA's opinion, however, to the extent it concludes that the IJ in Zheng's case lacked discretion not to enter a frivolousness finding.
As for the argument that the frivolousness bar was inapplicable as a matter of law to untimely asylum applications, the BIA ruled it "foreclosed" by agency precedent. Id. (citing Matter of M-S-B-, 26 I. & N. Dec. 872 (B.I.A. 2016); Matter of X-M-C-, 25 I. & N. Dec. 322 (B.I.A. 2010)). Finally, the BIA ruled that the IJ had "properly denied adjustment as a matter of discretion, in the alternative," based on "the seriousness of the misrepresentations made, which outweighed the equities presented by the [Ud Dins], including family and business ties in the United States."
Even if an alien has withdrawn her asylum application, an IJ may make a frivolousness finding as to the withdrawn application and deny her adjustment of status application on that basis. Matter of X-M-C-, 25 I. & N. Dec. 322, 326-27 (BIA 2010). In Matter of X-M-C-, an alien who initially had applied for asylum subsequently withdrew her application and instead sought an adjustment of status based on an I-130 spousal visa petition.
. The statement also appears to conflict with Matter of X-M-C-, 25 I. &N. Dec. 322 (BIA 2010), in which the BIA stated that "[o]nce the framework and safeguards delineated in Matter of Y-L- are followed, that is the end of the inquiry, and the consequences of filing a frivolous application apply."
In Matter of X-M-C-, the Board concluded a determination that an alien had filed a frivolous application for asylum can be made in the absence of a final decision on the merits of the asylum claim. 25 I. & N. Dec. 322, 322 (BIA 2010). There, the applicant in an adjustment application hearing admitted to previously filing a false asylum application.
Nor is it relevant that the 2017 Application "remained unadjudicated" until Lekomtsev filed the 2020 Application, because "the only action required to trigger a frivolousness inquiry is the filing of an asylum application," and "[t]here is no requirement . . . that the alien subsequently follow through with the application until a final decision is made on the merits." Matter of X-M-C-, 25 I. &N. Dec. 322, 324 (BIA 2010). Because Lekomtsev knowingly filed a frivolous application, he is "permanently ineligible for any benefits under [the Immigration and Nationality Act]," including asylum and withholding of removal.
) Contrary to Jashari's conclusion, it is well established that "[r]etraction of a materially false application does not necessarily change the fact that a materially false application was 'made.'" Yousif, 796 F.3d at 634 n. 4 (citing Lazar v. Gonzales, 500 F.3d 469, 478 (6th Cir. 2007)); see also Matter of X-M-C-, 25 I. & N. Dec. 322, 326 (BIA 2010)) ("withdrawal of an asylum application after the required warnings and safeguards have been provided does not preclude" a finding that the asylum application was frivolous). Thus, to the extent that Jashari argues that "the formal withdrawal of his application for asylum should prevent" a frivolous finding, "this contention is plainly wrong."
Second, even if we were to consider the line of BIA decisions relied upon by Ndibu, these decisions do not aid him. See Matter of X–M–C–, 25 I. & N. Dec. 322 (BIA 2010) ; Matter of B–Y–, 25 I. & N. Dec. 236 (BIA 2010) ; Matter of Y–L–, 24 I. & N. Dec. 151 (BIA 2007). In these decisions, the BIA did not conclude that the INA mandated additional oral warnings from the immigration judge at the asylum hearing; rather, the BIA merely suggested that “it would be a good practice for an Immigration Judge who believes that an applicant may have submitted a frivolous asylum application to bring this concern to the attention of the applicant prior to the conclusion of proceedings.”
Limbeya argues his application for adjustment of status renders the preparer's name—and indeed his entire asylum application—immaterial. We note for remand, however, that a misrepresentation in an asylum application is not immaterial simply because the alien is no longer seeking that form of relief or, as in Limbeya's case, because he is seeking an additional form of relief. See In re X–M–C–, 25 I. & N. Dec. 322, 326 (BIA 2010) (holding that withdrawing an asylum application does not prevent a finding of frivolousness because doing so would allow an alien to “escape the consequences deliberately chosen by Congress to prevent such abuse of the system”).III. Conclusion