The Sixth Circuit issued an interesting decision today on the issue of false statements in asylum applications and the “frivolousness” bar to asylum.  The case is Yousif v. Lynch and involves a decision denying asylum to a person who was otherwise-eligible because the applicant had made a false statement. The immigration statute says an applicant is “permanently ineligible for any benefits” under the law if he has knowingly made a frivolous asylum application. And the regulations say an application is deemed frivolous if any of its material elements have been deliberately fabricated. The requirement that the misrepresentation be “material” was the subject of the court’s analysis in Yousif.

The Supreme Court has concluded that false statements in immigration applications are only “material” if they had “‘a natural tendency to influence or was capable of influencing, the decision of the decisionmaking body to which it was addressed,’” and the BIA has agreed.

In Yousif, the applicant was found to have lied about what had happened to him in the past in Iraq.  But by the time the application was finally adjudicated, conditions had changed so drastically in Iraq for Chaldean Christians that he was eligible for asylum no matter what had happened to him in the past (because it was likely he would be harmed in the future, just based on his religion). And if the false statement about past persecution didn’t make a difference one way or the other, then, as the argument goes, it wasn’t “material.”

The Sixth Circuit agreed with that argument, holding “Because the IJ did not determine whether, at the time that Yousif submitted his application, contemporary conditions in Iraq were so dangerous for Chaldean Christians that Yousif would have been eligible for asylum based solely upon his religion, the IJ failed to determine whether Yousif’s misrepresentations were material to his application when they were made. We therefore grant the petition, vacate the Board’s decision, and remand for further proceedings.”

We litigated a similar issue in the Eight Circuit last year in Limbeya v. Holder. There the applicant was accused of having lied about who had filled out his application (but not the contents of the application).  The court in Limbeya held that something as trivial as the name of the preparer would not have made a difference on the application’s merits if the contents were not fabricated.

The lesson from these cases is that false statements in an asylum application and frivolousness determinations can have permanent, death-penalty-like consequences. Of course, the solution is to not make false statements in immigration proceedings.  But if that has happened, both Limbeya and now Yousif hold that the court still must consider whether the false statement was “material,” and, because of the high stakes, must not find the application “frivolousness” unless it was material.