Jonathan P. Baird

I wanted to remember my sister, Lisa Baird, on what would have been her 60th birthday, January 29, 2013. Lisa had many fine qualities. She was courageous, responsible, loving, warm, and funny. She loved justice passionately and she fought for it in so many ways for so many years.

There were many losses when Lisa died. Today I want to remember her as a lawyer. The world suffered a loss because Lisa is not here to represent clients, something she excelled at. Lisa was an unusual lawyer. It somehow seems inadequate to call her simply a lawyer. Lisa brought an extra dimension to her work. Call it caring, soul, persistence. She was a hard fighter. She took on many clients, maybe too many clients, and she had a remarkably international law practice for a solo practitioner. I do not know how all the clients found Lisa. She did no advertising.

I think it was a word on the street kind of thing. Lisa helped clients others would not help. She had a flexible approach to getting paid and that is a generous way to put it. When Lisa had help in her office (her colleague Caroline Neville) things went better for her. She needed help. She was prone to helping people who could not afford to pay her. On one occasion, I saw Lisa paid in sushi and I am sure that was not the only time.

Lisa graduated Rutgers Law School in Camden in 1985. Her first job was as a legal aid attorney at Lehigh Valley Legal Services. When there, I remember she specialized in representing clients who faced termination of their parental rights. She was based in Allentown Pa. and she did want to get back to living in Philadelphia. She accepted a staff attorney job working at Philadelphia City Council. She researched, drafted legislation, and advised council members. She was particularly fond of City Council member David Cohen who was a strong advocate for the poor.

Like many women attorneys, she had work problems when she had children. Lisa needed a more flexible work schedule than City Council allowed. She locked horns with John Street. She ended up leaving the position and she accepted a lawyer position at HIAS (Hebrew Immigrant Aid Society).

HIAS had previously focused its legal advocacy on representing Jewish clients, especially Russian Jews in immigration matters. Lisa pushed for a different approach. She represented both Jewish and non-Jewish clients. Her clients included Chinese boat people, Ugandan child soldiers, African women who had been victims of genital mutilation, and ethnically Chinese Indonesian Christians who were persecuted by the Muslim majority. Walking around Philadelphia with Lisa was an interesting experience because she knew so many people. It was a little like she was an old pol, making rounds.

Lisa eventually left HIAS and started her own law practice. She had an office on Cherry Street in Philadelphia in an enclave with other progressive law firms with whom she shared space. While on her own, her practice blossomed. I think it is fair to say that she was pretty well known in the city for her immigration law practice.

I am reminded of the Isaac Deutscher essay “The Non-Jewish Jew” when I think about Lisa as an attorney. Her passion for justice drove her to serve a wider client base, more universal, less particular. She always tapped into the human element, regardless of ethnic or national background.

If she was around, I know she would have continued on representing difficult, long shot cases that most conventional attorneys would not have looked at. Her tenacity got results. Sometimes you never know where advocacy will go and what the final outcome will be. Like everybody else, Lisa lost sometimes but she also would win when no one thought it was possible.

I will end with a Bertolt Brecht poem that reminds me of Lisa. I also will include a favorable decision she received from the Third Circuit Court of Appeals. It was typical of Lisa’s advocacy. She was modest but she could win in any forum.

The Bread of the People by Bertolt Brecht

Justice is the bread of the people.
Sometimes it is plentiful, sometimes it is scarce.
Sometimes it tastes good, sometimes it tastes bad.
When the bread is scarce, there is hunger.
When the bread is bad, there is discontent.

Throw away the bad justice
Baked without love, kneaded without knowledge!
Justice without flavour, with a grey crust
The stale justice which comes too late!

If the bread is good and plentiful
The rest of the meal can be excused.
One cannot have plenty of everything all at once.
Nourished by the bread of justice
The work can be achieved
From which plenty comes.

As daily bread is necessary
So is daily justice.
It is even necessary several times a day.

From morning til night, at work, enjoying oneself.
At work which is an enjoyment.
In hard times and in happy times
The people requires the plentiful, wholesome
Daily bread of justice.

Since the bread of justice, then, is so important
Who, friends, shall bake it?

Who bakes the other bread?

Like the other bread
The bread of justice must be baked
By the people..

Plentiful, wholesome, daily.

United States Court of Appeals for the Third Circuit

Wandayani Luciana, Petitioner v. Attorney General Of the United States, Respondent

No. 05-3544

September 17, 2007

Before:  McKEE and ALDISERT, Circuit Judges, and RESTANI, Judge .*

Lisa A. Baird, Philadelphia, PA, for Petitioner.Peter D. Keisler, Assistant Attorney General Civil Division, Richard M. Evans, Mark L. Gross, Wonkee Moon, Department of Justice, Washington, DC, for Respondent.

OPINION OF THE COURT

This petition by Wandayani Luciana for review of an order of the Board of Immigration Appeals (“BIA” or “Board”) requires us to decide whether a single fabricated incident in Petitioner’s time-barred asylum application renders the application frivolous and consequently renders her permanently ineligible for any and all benefits under the Immigration and Nationality Act. We conclude as a matter of law that Petitioner’s petition was not frivolous, and we will grant this petition for review.

I.

Luciana is an Indonesian national of Chinese ancestry.   She entered the United States as a nonimmigrant visitor on or about December 7, 2000, with authorization to remain here until June 6, 2001.   She remained past that date and submitted an application for asylum and withholding of removal on November 2, 2002, approximately 23 months after her arrival in the United States.   In her application, she asserted that she is ethnically Chinese and Christian, and alleged past persecution as well as a well-founded fear of future persecution based on her race and religion should she return to Indonesia.

The Asylum Officer denied her application, and referred her case to the immigration enforcement authorities.   Luciana was served with a Notice to Appear charging that she was removable from the United States because, after admission as a nonimmigrant under the Immigration and Nationality Act (“INA”) § 101(a)(15), 8 U.S.C. § 1101(a)(15), she remained in the United States longer than permitted. She appeared before an immigration judge (“IJ”) and conceded removability, but requested asylum, withholding of removal, relief under Article III of the Convention Against Torture (“CAT”), and, in the alternative, voluntary departure.

A hearing was held before the IJ on December 23, 2003.   Luciana testified through an Indonesian interpreter that she is an Indonesian national of Chinese ancestry and that she entered the United States on December 10, 2000.   She testified that, in Indonesia, she was a baptized member of the Pentecostal Christian Church from February 26, 1995, until her departure to the United States in December 2000.   She testified that since her arrival here she has been a member of a number of Indonesian Christian churches.

She explained that, when living in Indonesia, she experienced problems because of her Chinese ancestry and religious beliefs.   First, she testified about an incident in which she was dismissed from school “because there was an incident where a maid was beaten by her pastor who was Chinese.”   A.R. 194.   She also testified that she was often mocked on the streets on her way to and from school because she was Chinese.   She further recounted two incidents in 1998 during which groups of men looted her father’s store while she was away.   Her father reported one of the incidents to the police, but they told him they could not help.   Lastly, Luciana testified that, because of riots targeting Christians of Chinese ancestry, her church in Indonesia was forced to meet in members’ homes.

Luciana wanted to leave Indonesia because she was afraid.   She said that people of Chinese descent were not protected in Indonesia, and that her life would be in danger if she returned to Indonesia because Muslims, who are the majority in Indonesia, hate Christians.   She also testified that she believed that if she returned to Indonesia and opened a business, she would likely be robbed.

When the IJ asked why she did not apply for asylum during her first year in the United States, she said that she planned to file an asylum application in May 2001, but her father suffered an accident and she was forced to take care of him.1  When the IJ asked her why her father’s injury prevented her from filing her application, she testified that, as the oldest child, she was responsible for caring for her father and seeing to his medical needs.   She testified that her father’s accident occurred in May 2001, he had related surgeries through June 2001, and he underwent out-patient physical therapy until December 2001.   The IJ noted that Luciana did not apply for asylum until November 2002-11 months after the end of her father’s physical therapy.   When government counsel asked why she could not file the application while caring for her father given that she knew the application needed to be filed within one year, Luciana explained that she “was not thinking that far ahead and continued to care for her father who was under stress.”   App. 20.

Luciana testified that she asked an attorney to help her in filing an asylum application, but that he refused to help after learning that she had been in the United States for longer than one year.   Subsequently, she got help from a man named “Tony Tju” who prepared the application for her.   She gave him written information about her experiences in Indonesia for use in preparing the asylum application.   When the IJ asked if the information in her asylum application was consistent with the information she provided to Tju, Luciana testified that she did not provide Tju with information about the December 1999 incident that was included in her asylum application.   In her asylum application, Luciana alleged that she had been assaulted and cut with a knife by native Indonesians because of her religious beliefs on the way to church.   Luciana testified that Tju made up the incident because he believed it would strengthen her application.   She testified that she attended her asylum interview with Tju but without an interpreter.   She further testified that although she did not affirmatively discuss the made-up December 1999 incident and knew that it did not occur, when the asylum officer asked her about it, she described the incident as written in her application.   Luciana testified that she lied about this incident because Tju told her that if she told the truth about it, he would tell the asylum officer that the lie was entirely hers and that he had nothing to do with it.   She said that because she was not very familiar with the asylum process, she was fearful.

The IJ issued an oral decision in which he found that Luciana was statutorily ineligible for asylum because she failed to file an asylum application within the one-year limitation period without demonstrating exceptional circumstances or changed country conditions to excuse the delay.   Additionally, the IJ stated that if one of the exceptions to the one-year bar were to apply, he “would also have serious problems with regard to the respondent’s claim ․” App. 25.   Although the IJ found her assertions that she is a Christian and a native of Indonesia credible, he stated that, were he to reach the merits of the asylum application, he would find her testimony not credible insofar as it pertained to past persecution.   The IJ then considered Luciana’s requests for withholding of removal and relief under the CAT. He found that she presented no evidence of past persecution.   In addition, he concluded that she had not demonstrated that it was more likely than not that she would be persecuted or tortured because of her race or religion by, or with the consent or acquiescence of any agent of, the Indonesian government.   Therefore, the IJ denied Luciana’s application for asylum, withholding of removal, relief under the CAT, and, in the alternative, voluntary departure.2  In addition, because of the fabrication of the December 1999 incident, the IJ found that Luciana “knowingly filed an asylum application which is frivolous in part, thereby triggering the lifetime bar to benefits pursuant to Section 208(d)(6) and 8 C.F.R. § 208.20 et seq.”   App. 32-33.

Luciana filed a Notice of Appeal to the BIA on January 14, 2004.   On August 7, 2004, Luciana married a United States citizen, William T. Hughes, Jr. Thereafter, on February 2, 2005, the Department of Homeland Security approved the Petition for Alien Relative (Form I-130) that Hughes filed for Luciana, and authorized Luciana to apply to adjust her status to permanent resident (Form I-485).   Luciana and Hughes testified that their son, Evan, was born on June 14, 2005.   On March 17, 2005, Luciana filed a motion with the BIA to overturn the IJ’s frivolousness finding and remand her case to the IJ for consideration of her application to adjust status to lawful permanent resident.

On June 24, 2005, the BIA affirmed the IJ’s decision “based upon and for the reasons set forth therein.”   App. 3. The BIA agreed that Luciana did not file her asylum application in a timely fashion or demonstrate circumstances preventing her from filing for asylum within the allotted time.   The BIA also agreed that she did not establish that it is more likely than not that she would be persecuted or tortured if returned to Indonesia, and it affirmed the IJ’s “finding that [Luciana] filed a frivolous asylum application.”  Id. The BIA also held Luciana ineligible for adjustment of status because her asylum application had been found frivolous.   Therefore, it denied her motion for remand to the IJ for an adjustment of status.

Luciana then filed a timely petition for review.

II.

A.

We begin by reviewing the relevant provisions of asylum law.   Under 8 U.S.C. § 1158(a)(1), “[a]ny alien who is physically present in the United States ․ may apply for asylum ․” This provision, however, “shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.”  Id. § 1158(a)(2)(B).  Therefore, an alien who fails to satisfy the one-year timeliness requirement lacks “[a]uthority to apply for asylum.”  Id. § 1158(a).   Two narrow exceptions exist, however:

An application for asylum of an alien may be considered, notwithstanding subparagrap[h] (B) ․, if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).

Id. § 1158(a)(2)(D).

Asylum law also provides severe consequences for filing a frivolous asylum application.  Section 1158 provides in relevant part:

(d) Asylum Procedure

(4) Notice of privilege of counsel and consequences of frivolous application

At the time of filing an application for asylum, the Attorney General shall-

(A)  advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum ․

(6) Frivolous applications

If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.

Id. § 1158(d).

In recognition of “the severe consequences of a finding of frivolousness under 8 U.S.C. § 1158(d)(6), the corresponding federal regulations prescribe the parameters within which the IJ and the BIA must operate in making these determinations.”  Liu v. U.S. Dept. of Justice, 455 F.3d 106, 112 (2d Cir.2006) (Calabresi, J.).   Specifically, the regulations state:

For applications filed on or after April 1, 1997, an applicant is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application.   For purposes of this section, an asylum application is frivolous if any of its material elements is deliberately fabricated.   Such finding shall only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim ․

8 C.F.R. § 208.20.

We interpreted this regulation in Muhanna v. Gonzales, 399 F.3d 582 (3d Cir.2005), and emphasized the distinction between a finding of frivolousness and a finding of not credible.   We stated that “a finding of frivolousness does not flow automatically from an adverse credibility determination in any event.”  Id. at 589.   The finding of “[i]nconsistencies between testimony and an asylum application” does not “equate to a frivolousness finding under Section 1158(d)(6).”  Id. In Muhanna, we held that, “by imposing a frivolousness finding based not on a thorough examination of the application but instead on [the IJ’s] assessment of [the petitioner’s] credibility, and by consequently refusing to allow further testimony, the IJ violated [the petitioner’s] rights and deprived [her] of due process.”  Id.

B.

It is worth pausing to emphasize the importance of the frivolousness standard.   Its importance stems not just from the frequency with which it potentially could arise, see Liu, 455 F.3d at 117, but also from the severity of the consequences accompanying a finding of frivolousness.   To put it bluntly, a frivolousness finding is a “death sentence” for an asylum-seeker’s hopes of securing permanent, legal residence in the United States.   Muhanna, 399 F.3d at 588.   It renders an asylum applicant “permanently ineligible for any benefits” under the immigration laws.  8 U.S.C. § 1158(d)(6).   This bar is “[o]ne of the ‘most extreme provisions’ in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996,” and, once imposed, it “ ‘may not be waived under any circumstances.’ ”  Muhanna, 399 F.3d at 588 (quoting Austin T. Fragomen, Jr., et al., Immigration Legislation Handbook § 8:96 (database updated April 2004)).3

In the case at bar, the consequences are particularly tangible because Petitioner has now married a U.S. citizen, with whom she has a child.   Were it not for the frivolousness finding, Luciana could apply for a Waiver of Grounds of Inadmissibility (Form I-601).   See United States v. Tinoco-Medina, 6 OCAHO 890, 1996 WL 670175, *19 (1996) (commenting, in a case where a non-citizen had committed document fraud and had been convicted of spousal abuse but had submitted an I-601 waiver request, that “[s]ince his wife is a naturalized citizen, respondent may adjust his status”).

III.

In the case at bar, Petitioner does not contest the denial of her asylum application on timeliness grounds, or the IJ’s or BIA’s refusals to grant her withholding of removal or protection under the CAT. She disputes only the finding that her asylum application was frivolous.

 We review de novo the BIA’s and IJ’s applications of the legal standard of frivolousness.   See Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004).   Because the BIA affirmed and adopted the IJ’s opinion, we review the decisions of both the BIA and the IJ. See Jarbough v. Attorney General, 483 F.3d 184, 191 (3d Cir.2007).4

The IJ established that Petitioner did not file her application within one year of arrival-a finding she does not contest-and found no exception applicable.5  The IJ did not, however, end his analysis there.   He proceeded to examine the substance of the application and determined that Petitioner’s application was frivolous.   He stated:  “if a review of this record would determine that the exception to the one-year filing bar should be invoked, the Court would also have serious problems with regard to [Petitioner’s] claim, ․ [inter alia ] because of the actions that [Petitioner] took in ratifying the fabricated/material additions to her application for asylum at the Asylum Office interview.”   App. 25-26.   He went on to consider whether Petitioner’s asylum application was frivolous, weaving together his discussion of frivolousness with his discussion of credibility.

The IJ focused on the inclusion in Petitioner’s asylum application of a false statement that she had been stabbed because of her religious beliefs-the statement that Petitioner testified was added by Tony Tju, who prepared her application.6  He concluded that, were the merits of the asylum application at issue, he “would enter a mixed credibility finding in this case.  ․” App. 28.   As to frivolousness, however, the IJ did not couch his views in hypothetical language, instead determining that Petitioner “is permanently ineligible for any benefits under the [Immigration and Nationality] Act,” app. 30, and ordering “that [Petitioner] be deemed an individual who has knowingly filed an application for asylum which is frivolous in part,” app. 33.   He concluded that “[t]here is absolutely no way that this Court can in any way absolve [Petitioner] from such a frivolous[ness] finding.”   App. 28.

 The IJ’s frivolousness finding was based on an error of law.   Although we believe there are many other ways in which the frivolousness finding in this case rests on unsure footing, we make our determination on a single, simple basis:  Petitioner’s false statement was not material.   See 8 C.F.R. § 208.20 (“[A]n asylum application is frivolous if any of its material elements is deliberately fabricated ․” (emphasis added)).

Neither the relevant statute nor the regulations define material, and the caselaw on frivolousness does not provide a definition.   The Supreme Court, however, has conclusively settled the meaning of the term.   In Kungys v. United States, 485 U.S. 759, 769-772, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988), the Supreme Court discussed the meaning of “material” at some length.   In Kungys, which arose in the context of an action to revoke citizenship, the Court considered “whether certain misrepresentations or concealments made by Kungys in connection with his naturalization proceeding were material.”  Id. at 763, 108 S.Ct. 1537.   The Supreme Court reviewed dictionary definitions and historical uses of the term, and endorsed the following definition:  “[A] concealment or misrepresentation is material if it has a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.”  Id. at 770, 108 S.Ct. 1537 (internal quotation marks omitted);  see also United States v. Wells, 519 U.S. 482, 489, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (same).

In the case at bar, the falsehood had neither the natural tendency nor the capability of influencing the decision of either the Asylum Officer, the IJ or the BIA.7 Because Petitioner’s asylum application was untimely, she could not be granted asylum unless her case fell under an exception to the time limit.   See 8 U.S.C. §§ 1158(a)(2)(B), (a)(1).   Once it became clear that no exception applied, her application had to be rejected as time-barred. Evidence going to the merits of the application-such as Petitioner’s story about the stabbing-was of no consequence, no matter how persuasive or compelling it might have been.   Such evidence was totally incapable of influencing the decision-makers, and therefore it was not material.   From all this there is but one logical conclusion:  because Petitioner’s statement was not material, it was an error of law to conclude that her application was frivolous.

Because we determine that the falsehood on which the IJ based his frivolousness finding was not material, and therefore the finding was erroneous as a matter of law, we need not consider whether 8 U.S.C. § 1158 provides authority to issue a frivolousness finding in the context of an untimely asylum application.   We note, however, that the existence of such authority is far from clear.   An individual lacks “[a]uthority to apply for asylum” if her application is untimely and no exception to the one-year bar applies.  8 U.S.C. § 1158(a).   If an individual lacks authority to apply for asylum, any application for asylum would seem to be a nullity, preventing the IJ from reaching the merits of the asylum application and assessing whether “any of its material elements is deliberately fabricated.”  8 C.F.R. § 208.20.8

IV.

A.

A recent BIA decision and associated opinions of the Court of Appeals for the Second Circuit raise additional questions about the propriety of the IJ’s frivolousness finding in the case before us that deserve some comment here.   In Liu, 455 F.3d at 106, our sister Court of Appeals considered a frivolousness finding.   Stating that it found itself confronted by issues with which it dealt infrequently and “on which the BIA has, thus far, provided no substantial guidance,” id. at 110, the court remanded the case “to give the BIA an opportunity, in the first instance, to formulate standards for deciding when an asylum seeker’s application may be deemed frivolous,” id. at 108.

On remand, the BIA reversed its prior decision, vacating the IJ’s frivolousness finding.   See In re Y-L-, 24 I. & N. Dec. 151 (BIA 2007).   In so doing, the Board stated that “the following requirements” must be met in reaching a frivolousness finding:

(1) notice to the alien of the consequences of filing a frivolous application;  (2) a specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application;  (3) sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated;  and (4) an indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

Id. at 155.

The BIA elaborated on each of these four procedural safeguards.   As to the notice requirement, the BIA stated that 8 U.S.C. § 1158(d) and 8 C.F.R. § 208.20 “require that the Attorney General advise the alien at the time of filing an asylum application of the consequences of filing a frivolous application, i.e., permanent ineligibility for any benefits under the Immigration and Nationality Act except for withholding of removal.”  Id. The BIA noted that the asylum application form, I-589, contains a standard warning that “ ‘[a]pplicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act’ ”;  the BIA did not, however, state “whether this notice alone would suffice under the notice requirement.”  Yang v. Gonzales, 496 F.3d 268, 275 n.3 (2d Cir.2007) (quoting Y-L-, 24 I. & N. Dec. at 155).

As to the second safeguard, the BIA stated that “the Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”   Y-L-, 24 I. & N. Dec. at 156.9  In Y-L-, the IJ included two paragraphs finding that the asylum applicant had deliberately fabricated an account of an abortion and illegal adoption, and addressed the materiality of the fabrications.  Id. at 157.

With regard to the third safeguard-requiring “sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated,” id. at 155-the BIA stated:

After taking into account the respondent’s explanations for discrepancies or implausible aspects of the claim, ․ the Immigration Judge must provide cogent and convincing reasons for finding by a preponderance of the evidence that an asylum applicant knowingly and deliberately fabricated material elements of the claim.

Id. at 158 (emphasis added).   The Board stated that the regulation “plac [es] the ultimate burden of proof on the Government ․” Id.

With regard to the fourth safeguard-requiring that an asylum applicant be “afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim”-the Board stated 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.”  Id. at 159-160 (emphasis added).   As the Court of Appeals for the Second Circuit has since observed, the BIA, later in the opinion, appears to treat this recommendation as a requirement, at least in some cases.   See Yang, at 275 (“Later in its opinion ․ the BIA appears to require such an action in cases where it would not be obvious to an applicant that such a finding was being considered.”).10

The Court of Appeals for the Second Circuit considered the Y-L- standard in Yang. Id. at 276. The court noted that ambiguities about how to apply the statute and regulations “remain even after Y-L-,” and chose again “to remand ․ for the BIA to interpret and apply the standards it set forth in Y-L- in the first instance.”  Id. at 276. On remand, the court instructed the BIA to consider:

inter alia, the following issues:  (1) to what extent the IJ is required to set out his or her factual findings to support a frivolousness determination separately from the adverse credibility determination and to what extent he or she is permitted to incorporate by reference the findings made to support an adverse credibility determination;  (2) to what extent the IJ is required to consider the applicant’s explanations for any discrepancies separately from the adverse credibility determination;  (3) to what extent the IJ is required to explicitly find that the fabrications at issue were “deliberate” or “material”;  and (4) to what extent the IJ is required, if at all, to inform the applicant during the course of the proceedings that he or she is considering a frivolousness determination before he or she renders such a determination.

Id. at 279. The case is currently before the BIA.11

B.

The BIA’s decision in Y-L- suggests that there may be problems with the IJ’s frivolousness finding apart from the error in finding Petitioner’s false statement “material.”   First, it is not apparent that Petitioner received notice “of the consequences of filing a frivolous application” as required by Y-L-, 24 I. & N. Dec. at 155.   Although Petitioner’s application contained a standard warning about frivolousness, the BIA has not stated “whether this notice alone would suffice under the notice requirement.”  Yang, 275 n. 3.

Second, as the Court of Appeals for the Second Circuit has noted, “the BIA appears to require ” that the IJ bring to an applicant’s attention the possibility that her application may be found frivolous “in cases where it would not be obvious to an applicant that such a finding was being considered.”  Id. at 275 (emphasis in original).   Were we not resolving this case on materiality grounds, we would want to consider the impact of this potential requirement.

Third, Y-L- requires an IJ to make a “specific finding ․ that the alien knowingly filed a frivolous application.”  Y-L-, 24 I. & N. Dec. at 155.   To satisfy this requirement, “the Immigration Judge must separately address the question of frivolousness, including a discussion of the evidence supporting a finding that the respondent deliberately fabricated a material element of the asylum claim.”  Id. at 156 (emphasis added).   In the case at bar, the IJ melded together his discussion of credibility and his discussion of frivolousness.   Such combined discussion may fall short of the separateness requirement.

We leave these and other questions about frivolousness for future resolution.   In the case at bar, Petitioner’s false statement lacked the capacity to influence the decision of either the Asylum Officer or the IJ once her asylum application had been found time-barred, and so the statement was not material.

V.

Our decision today is driven by the bare force of logic, but we also consider that the outcome here is a just one.   Courts are not merely cogs in a system of “mechanical jurisprudence.”   R. Pound, Mechanical Jurisprudence, 8 Colum. L.Rev. 605 (1908).   The “jurisprudence of conceptions (Begriffsjurisprudenz )” has been superseded “by a jurisprudence of results (Wirklichkeitsjurisprudenz ).”  Id. at 610;  see Julius Stone, Jurisprudence, 75 Harv. L.Rev. 1240, 1241 (1962).12

When a modern-day court confronts a case, it has been said that “the first question should be, how will a rule or a decision operate in practice?”   Pound, supra, at 610 (summarizing the approach of Rudolph von Ihering, a pioneer of Wirklichkeitsjurisprudenz ).   We no longer believe that “[o]bviously a principle, if sound, ought to be applied wherever it logically leads, without reference to ulterior results.”  Gluck v. City of Baltimore, 81 Md. 315, 32 A. 515, 517 (1895).   Indeed, we now recognize that there are “dangers” in “extend[ing] a maxim or a definition with relentless disregard of consequences to ‘a dryly logical extreme.’ ”  Hynes v. New York Cent. Ry. Co. 231 N.Y. 229, 235, 131 N.E. 898 (1921) (Cardozo, J.).13  In many cases, “[t]he true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and general propositions of law which nobody disputes.”  Vegelahn v. Guntner, 167 Mass. 92, 106, 44 N.E. 1077 (1896) (Holmes, J., dissenting).

In the case at bar, the IJ found Petitioner to have committed a serious wrong:  she ratified a false statement contained in her asylum application.   This is a wrong we cannot condone.   Immigration proceedings, like almost all legal proceedings, depend on the ability of decision-makers to find the truth.   Lies undercut immigration proceedings just as they do proceedings in state and federal courts.   Without the truth, the judicial edifice turns to a house of cards.

But Petitioner’s misdeed will not go unpunished.   Her asylum application has been denied.   The IJ’s order for her removal-issued, ultimately, because she voluntarily came forward to apply for asylum-stands.   Any possibility she has of ever living legally and permanently with her family in the United States now hangs on the willingness of the Attorney General to grant her a waiver.   Such waivers are far from a certainty.   See, e.g., Howell v. INS, 72 F.3d 288 (2d Cir.1995) (holding that a district court lacked jurisdiction to review the Immigration and Naturalization Service’s refusal to grant a waiver of a ground of inadmissibility in the case of a Jamaican woman married to a U.S. citizen).

By additionally issuing a frivolousness finding, the IJ brought down on Petitioner a lifetime ban on all means of legally entering the United States.   This punishment falls not only on her, but on her husband and child as well.   Because modern jurisprudence recognizes the importance of results, it would seem that the various IJs and the BIA should at least consider the consequences of the draconian penalty attached to a finding that the application for asylum is frivolous, particularly where, as here, the finding may cause the family structure of the applicant to be permanently ruptured.

* * * * *

Accordingly, because we determine as a matter of law that Petitioner’s application for asylum was not frivolous, we grant the petition for review and remand this case to the BIA for further proceedings consistent with this opinion.

FOOTNOTES

1.  Apparently, Luciana came to the United States with her father, See Ek Go, and her mother, Widyani Suwita.   Her mother and father also filed asylum applications and, at one time, the applications of all three were consolidated.   However, Luciana’s was later severed from her parents’ asylum applications.   Luciana also had a minor brother who was in the country legally under a student visa.

2.  Because the IJ found that Luciana was not a person of good moral character, he denied Luciana’s request for voluntary departure. See 8 U.S.C. § 1229c(b)(1)(B).  His finding that she was not a person of good moral character was based on his finding that she ratified the partially-fabricated asylum application during her interview with the asylum officer.   INA § 101(f)(6) provides, in relevant part:  “No person shall be regarded as, or found to be, a person of good moral character who, during the period for which good moral character is required to be established is, or was-․ one who has given false testimony for the purpose of obtaining any benefits under this chapter.”  8 U.S.C. § 1101(f)(6).   In In re R-S-J, 22 I. & N. Dec. 863, Interim Dec. (BIA 1999), the BIA held that for purposes of INA § 101(f)(6), false oral statements made under oath to an asylum officer can constitute false testimony as defined in Phinpathya v. INS, 673 F.2d 1013 (9th Cir.1981), reversed on other grounds, 464 U.S. 183, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984).

3.  The permanent bar imposed by 8 U.S.C. § 1158(d)(6) applies only to discretionary forms of relief and not, therefore, to withholding of removal or to relief under the Convention Against Torture.   See 8 C.F.R. § 208.20;  Muhanna, 399 F.3d at 589.

4.  We have jurisdiction to review the IJ’s and BIA’s determinations under 8 U.S.C. § 1252 because the IJ’s frivolousness determination was reviewed by the BIA and Petitioner raises it on appeal.   See Petitioner’s Br. at 2, 8. Furthermore, as to materiality-the specific sub-issue of frivolousness on which we determine the case turns-we agree with the government that “[P]etitioner appears to contend that the IJ improperly based its ‘frivolousness finding’ on its adverse credibility determination, and did not specifically find that [P]etitioner’s fabricated incident was material to her asylum application ․” Respondent’s Br. at 20.

5.  Although Petitioner testified that she had been busy caring for her injured father during her first year in the United States, and that her parents needed her assistance due to their limited knowledge of English, the IJ stated that he was “at a loss to understand why a simple form could not have been prepared, even in a skeletal fashion and filed with the then INS, even if [Petitioner] did not have all the supporting documents.”   App. 24.   Petitioner does not contest the IJ’s finding that neither exception applies.

6.  The IJ stated:While [Petitioner] indicates that the application was prepared by Mr. Tju after he received her written story, she does not indicate that she did not know that the story contained an additional factual element that was false, in fact, a factual element which would reflect the only incident in which [Petitioner] was physically harmed in Indonesia allegedly on the basis of a protected ground.  [Petitioner’s] actions suggest that, even if the original idea to add the additional fact pattern was Mr. Tju’s, that participating in the signing of the application and, more importantly, ratifying the false component of that application at the Asylum Officer interview leads the Court to conclude that [Petitioner] knowingly participated with Mr. Tju in a conspiracy to submit an application that was at least in part false in a material respect.App. 26-27.   The IJ went on to comment that Petitioner “indicate[d] that she is a serious Christian, but, nevertheless, apparently had no problems in submitting a false statement.”   App. 27.

7.  It is not necessary to determine which of Petitioner’s statements indeed was false-her initial story or her recantation.

8.  Additionally, in the case of an untimely application, 8 U.S.C. § 1158(a)(2)(D) states that the application “may be considered” if one of the stated exceptions applies.   This language may fairly imply that an application may not be considered if an exception does not apply.

9.  Later in the opinion, the BIA noted that the regulation mandates “specific findings of deliberate fabrication of a material element of the asylum application ․” Y-L-, 24 I. & N. Dec. at 158.

10.  In Y-L-, the BIA ultimately determined that the IJ had not taken into account the petitioner’s explanations for inconsistencies, and so had fallen short of Y-L-‘s fourth requirement.   See Y-L-, 24 I. & N. Dec. at 162.

11.  We are in agreement with the panel in Yang that many of the precise contours of frivolousness remain unsettled.   Furthermore, we share the panel’s hope of obtaining guidance on proper application of the Y-L-safeguards from the Board.   Nevertheless, we take a different approach in this case.   Our decision to forge ahead ourselves rather than remanding to the BIA is influenced by the nature of the issue presented in the case at bar-a relatively narrow issue of law that is for this Court to decide, standing apart from the intricacies of immigration procedure.   Additionally, the controlling issue here-the meaning of “material”-is relatively distinct from the questions posed to the BIA in Yang, at 279, and so we believe our analysis will not interfere with or unduly complicate the resolution of that case.

12.  Consider modern-day tort law’s rejection of long-standing conceptions of negligence and defamation.   In the first opinion advocating what is now known as products liability, a concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436 (1944), Justice Roger Traynor commented:  “It is to the public interest to discourage the marketing of products having defects that are a menace to the public.   If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market.”  Id. at 462, 150 P.2d 436 (Traynor, J., concurring).Consider, also, the Supreme Court’s comments in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).   Notwithstanding centuries of fealty to conceptual defamation, the Supreme Court produced a sea change in that case.   Writing for the Court, Justice William J. Brennan, Jr., said:  “[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  Id. at 270, 84 S.Ct. 710.

13.  Judge Cardozo wrote this opinion the year he delivered the Storrs Lecture at Yale Law School, which later was published as The Nature of the Judicial Process (1921).

ALDISERT, Circuit Judge.

I am not sure when I first discovered the poet, Kenneth Patchen. Somehow I came across the New Directions paperback of his Collected Poems. (I also came across Kenneth Rexroth around the same time in the same way) I think I was in high school or college at the time.

Patchen is pretty much unknown these days. Poetry circles know about him but you never see any reference to him in print media or even on popular internet sites. I suppose this is the typical fate of most poets in America, especially rebel poets. Patchen has also been dead for a while. He died in 1972.

I wanted to write this blog entry to recognize him and to try, in a very small way, to rescue his poetry from oblivion. His poetry is passionate, creative, angry, and romantic.

He once described himself this way: “I speak for a generation born in one war and doomed to die in another.” Just to give a little background, Patchen was born in Niles, Ohio on December 13, 1911. His father was a steelworker. Patchen and his wife Miriam lived on both coasts, settling in California. He suffered some awful adversities during the course of his life including the death of his younger sister, a back impairment that caused him severe pain and continuing financial struggles. In the early 50’s, a group of poets including E.E. Cummings, T.S. Eliot, and William Carlos Williams raised money to finance a back surgery for Patchen. His back was never right and for much of the last part of his life, he wrote from bed.

Patchen preceded the Beat Generation and was not a part of that although he did inspire some beats. It seems reductionist to call Patchen a political poet. Besides what could be categorized as his political poems, he wrote tender love poems; he painted poems that merged drawing and poetry; and he combined poetry reading and jazz. He read with Charles Mingus playing. He was ferociously anti-war. His pacifism runs through many poems. He hated fascism and Stalinism. In his poem, “The Executions in Moscow” , he quotes Ignazio Silone. I think this statement is a good reflection of Patchen’s politics.

“I am convinced – and this is the conviction that I have tried to express in all my writings – that to arm ourselves against Fascism we do not need material means above all. To oppose Fascism, we need neither heavy armaments nor bureaucratic apparatuses. What we need above all is a different way of looking at life and at human beings. My dear friends, without this different way of looking at life and at human beings, we shall ourselves become Fascists. And I refuse to be a Fascist – even a Red Fascist.”

I did want to particularly mention Patchen’s painting poems. Some are weird. Some are cosmic. Some defy understanding. They are very imaginative. The one I have included above was a relatively tame one.

I also wanted to mention some of his “Sayings” which are reminiscent of William Blake. Here are a sampling:

“No man’s life is beautiful except in hurtless work.”

“The autumn leaf is emblazoned with spring’s belief.”

” “The real truth of the matter” is usually a lie all slicked up to do a spot of their particularly dirty work.”

“Yes they’ve dirtied the tree, and dirtied the earth around it, but somehow I feel they won’t succeed in keeping much more than the record of their own lack of spirit and humility tethered here.”

“In the love of a man and a woman is the look of God looking.”

Patchen wrote many books. I would suggest his Collected Poems is a great place to start if you are inclined to read more of his poetry. Below are a few Patchen poems I like:

The Character of Love Seen as a Search for the Lost

You, the woman; I, the man; this, the world:
And each is the work of all.

There is the muffled step in the snow; the stranger;
The crippled wren; the nun; the dancer; the Jesus-wing
Over the walkers in the village; and there are
Many beautiful arms about us and the things we know.

See how those stars tramp over heaven on their sticks
Of ancient light: with what simplicity that blue
Takes eternity into the quiet cave of God, where Caesar
And Socrates, like primitive paintings on a wall,
Look, with idiot eyes, on the world where we two are.

You, the sought for; I, the seeker; this, the search:
And each is the mission of all.

For greatness is only the drayhorse that coaxes
The built cart out; and where we go is reason.
But genius is an enormous littleness, a trickling
Of heart that covers alike the hare and the hunter.

How smoothly, like the sleep of a flower, love,
The grassy wind moves over night’s tense meadow:
See how the great wooden eyes of the forest
Stare upon the architecture of our innocence.

You, the village; I, the stranger; this, the road:
And each is the work of all.

Then, not that man do more, or stop pity; but that he be
Wider in living; that all his cities fly a clean flag…
We have been alone too long, love; it is terribly late
For the pierced feet on the water and we must not die now.

Have you wondered why all the windows in heaven were broken? Have you seen the homeless in the open grave of God’s hand?
Do you want to acquaint the larks with the fatuous music of war?

There is the muffled step in the snow; the stranger;
The crippled wren; the nun; the dancer; the Jesus-wing
Over the walkers in the village; and there are
Many desperate arms about us and the things we know.

“The Way Men Live Is A Lie”

The way men live is a lie.
I say that I get so goddamned sick
Of all these pigs rooting at each other’s asses
To get a bloodstained dollar – Why don’t
You stop this senseless horror! this meaningless
Butchery of one another! Why don’t you at least
Wash your hands of it!

There is only one truth in the world:
Until we learn to love our neighbor,
There will be no life for anyone.

The man who says, “I don’t believe in war,
But after all somebody must protect us” –
Is obviously a fool – and a liar.
Is this so hard to understand!
That who supports murder, is a murderer?
That who destroys his fellow, destroys himself?

Force cannot be overthrown by force;
To hate any man is to despair of every man;
Evil breeds evil – the rest is a lie!

There is only one power that can save the world –
And that is the power of our love for all men everywhere.

A Time to Believe!

O “fruitful and purified” – an identity in the Invisible! Nothing is ever contradicted, all remains always , unchanged and unchang- ing. Instruction never saves, it lifts but what it lifts is itself.

Ambition is the weakness of all great spirits who in acceptance wil find the joy and the despair they seek. The physician can only cure when he is willing to assume your disease. To be
shunned is to be God a little –

We cannot add to what we are, nor can we take away. The
world is One Thing.

What sort of theory can any man draw up for the human spirit! We don’t need theories – we need Love, Humility, Simplicity – new ways to give! The brightest boys have all sold out. They can’t get anyone to believe them because the only “truth” they spout is one that won’t offend. But I am exaggerating – they are quite willing not only to offend but to murder anybody their “governments” will tell them to. With all proper respect for metric nicety, let it be said. These disgusting little lice! These betrayers of Life!

Everywhere the same – the same lousy sellout! The whole kit and caboodle of them! The vicious, stupid fools! Lackies of madmen bent on butchering the world!
But I tell you that Life will be avenged
I tell you that Life will look after its own
I tell you that Life will allow nothing to be added or taken away

Aye, now is the time to believe
When there is nothing to believe in!
Aye, now is the time to believe
if it does no more than show we’re still alive!

So let us present our duties with some humility as it gets dark now. In case it all does end, the crime will not be of our doing. For I’d rather take a nothing I loved to my grave than a something I have every reason to hate.

With a new Legislature coming to Concord, it is a good time to review how recent New Hampshire legislatures have treated the judicial branch. The truth is not pretty. Going back to the judicial impeachment trials and anger at the Claremont school decision, I would say the dominant legislative attitude has been hostility, expressed by under-funding.

Instead of being seen as a respected co-equal branch of government entitled to adequate funding, the judicial branch has been reduced to being a beggar for funds, competing and standing in line with other state agencies.

Maybe it shouldn’t need to be said, but the judicial branch is a branch of government just like the executive and the legislative. It is not a state agency like Fish and Game or Health and Human Services. In his talk in Concord last September, Justice David Souter remarked on the fact that two-thirds of Americans do not understand we have three branches of government. I wonder if some of the two-thirds were in our Legislature. The skinflint approach of our last Legislature was not just harmful to court functioning, it was self-destructive to government.

I will focus on three consequences of the under-funding that have damaged the justice system. There are others.

First, under-funding the courts has translated into understaffing the court system. Attorney Lee Nyquist outlined the results in a recent piece in New Hampshire Business Review. Delay is the major cost to citizens. Litigants, especially in our new circuit courts, which have jurisdiction of domestic matters, must wait longer for hearings. Nyquist says it takes six months to get an initial temporary hearing after a divorce is filed; six months for a hearing on a divorce modification and four months for a hearing on an emergency domestic matter like parental visitation.

It also takes longer to get written decisions from the court. There are too few clerical staff handling too many cases. As Nyquist says, this is not the fault of hardworking court staff. Because of the understaffing, he says that litigants may have to wait two months before a decision is sent out by the clerk’s office. For the litigants, especially in family matters, the delay often adds stress, anxiety, and sometimes financial hardship.I spoke to two New Hamp-

shire attorneys to get their take. Mary Krueger, director of the New Hampshire Legal Assistance Domestic Violence Advocacy Project, pointed to courts’ reluctance to issue orders on child support in the context of domestic violence cases. Judges are so crunched they will defer to the court issuing a divorce or parenting order. Unfortunately, the delay in making an order can be very detrimental to the litigant who may be desperately in need of income.

Steve Cherry, a Henniker attorney, mentioned the 2011 legislative action de-funding guardians ad litem (GALs) as harmful to low-income clients. For over 30 years, GALs have contributed to quality resolution of very difficult domestic disputes. They have acted as the eyes and ears of the court in assessing the best interest of children. While capable of error like anyone else, GALs often offer the court a very helpful perspective and insight. This legislative de-funding particularly hurts the poor who lack income to pay for a GAL. Financially better-off folks did not lose out since they can afford to pay if they need a GAL.

Legal Assistance cut

The second damaging consequence of legislative underfunding was the $1 million cut to New Hampshire Legal Assistance, a non-profit law firm that advocates for the poor, elderly and disabled. The cut led to the closing of both the Nashua and Littleton legal aid offices. The organization had to shrink dramatically and lay off dedicated, long-time, highly trained staff. The cut meant thousands fewer clients could be served.

Those unfamiliar with legal aid probably do not appreciate the gravity of the cut. Legal Assistance advocates have had an unsurpassed ability to get outstanding results for their clients in very challenging circumstances. Without an advocate, the likelihood of a poor outcome sharply increases. The cut meant more vulnerable clients getting evicted, foreclosed on, and facing benefit denials without help. These everyday adverse events are business as usual, under any radar screen. The underside of the lives of poor people generally escapes scrutiny.

There was a double indignity in the Legal Assistance cut. Lawyers who work for Legal Assistance make an idealistic commitment to the public interest. While they develop expertise in poverty law, they earn quite a bit less than they could earn in private practice. Instead of recognizing and honoring that commitment, the Legislature coldly trashed it. There was a willful blindness to the damage inflicted. Not only was Legal Assistance devalued, it was undermined.

I find it grating when spokespeople from the last Legislature tout its budget-cutting and all the money saved. It is only fair to point out the unacknowledged harm which consistently falls on the poor and people not represented by expensive lobbyists.

Abuse, neglect cases

The third area of under-funding I want to mention was the 2011 legislative stripping of the right to a lawyer in abuse and neglect cases. Indigent parents previously had the right to a lawyer when they faced charges of abuse or neglect.

The last Legislature removed the statutory requirement that parents get lawyers in these cases. New Hampshire had the dubious distinction of joining Mississippi as one of the only two states to deny counsel to poor people in these cases.

It is hard to overstate this particular harm. How many rights are more fundamental than the right to raise and care for your children? Parents facing abuse or neglect charges need counsel. They may be illiterate, poorly educated, of limited English proficiency, homeless or mentally ill. They may be incapable of articulating a defense they have. Sometimes poverty itself can be seen as neglect. There is something wrong and shameful when such a fundamental right is sacrificed solely for economic reasons.

It is possible to see the matters I have discussed as random and not reflecting a larger whole. However, I think not. There has been a pattern of punishing the justice system, especially poor litigants who are people with the least clout to fight back.

I hope the new Legislature turns over a new leaf and is ready to move beyond the past. When legislators under-fund the judicial branch, the truth is that they are only shooting themselves in the foot.

(Jonathan P. Baird of Wilmot is a federal administrative law judge who previously worked as an attorney for New Hampshire Legal Assistance. This column reflects his views, not those of his employer, the Social Security Administration.