The opinion of the court was delivered by: Katzmann, Circuit Judge:
Before KATZMANN AND LYNCH, Circuit Judges, KAPLAN, District Judge.*fn1
Petition for review of an August 30, 2010 Board of Immigration Appeals ("BIA" or the "Board") unpublished decision affirming an immigration judge's ("IJ") April 30, 2003 decision finding that Mei Juan Zheng ("Zheng" or "petitioner") filed a frivolous asylum application.
Zheng's petition returns to this Court after a February 1, 2008 opinion remanding the case to the BIA to consider whether: (1) a "frivolousness finding" can be entered against an alien who has withdrawn her asylum application; and (2) an IJ retains any discretion to decline to make a frivolousness finding. We hold that the BIA's conclusion that a withdrawn asylum application can serve as the basis of a frivolousness finding is reasonable, but that the BIA's decision that the IJ lacked discretion not to make such a finding is unpersuasive. Accordingly, for the reasons stated below, the petition for review is DENIED in part and GRANTED in part, the BIA's decision is VACATED, and we REMAND for further proceedings consistent with this opinion.
This case is before us following our decision in Mei Juan Zheng v. Mukasey, 514 F.3d 176, 181 (2d Cir. 2008), in which we concluded that petitioner's initial application for asylum contained deliberately fabricated material elements and that the IJ had followed the appropriate procedures before entering a frivolousness finding. Then, we also remanded the case to the BIA to consider: (1) whether "the IJ's authority to 'determine that an alien has knowingly made a frivolous application for asylum' [is] limited to circumstances in which that IJ makes 'a final determination on such application'"; and (2) if an IJ retains "any discretion under 8 U.S.C. § 1158(d)(6) to decline to make a frivolousness finding even if she finds that the statutory and regulatory conditions for frivolousness have been met." Id. at 181 (emphasis and brackets omitted). By unpublished opinion dated August 30, 2010, the BIA addressed this Court's questions and again dismissed Zheng's appeal from the IJ's frivolousness finding. Now, Zheng challenges the BIA's conclusion that a withdrawn application can serve as the basis of a frivolousness finding and that an IJ lacks discretion as to whether to enter such a finding when the statutory and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. Accordingly, we deny in part and grant in part Zheng's petition for review, vacate the BIA's decision, and remand for further proceedings consistent with this opinion.
Zheng, a native and citizen of the People's Republic of China, attempted to enter the United States on March 27, 2000 without valid entry documents. Following a credible fear interview, in which Zheng claimed that she was forced to undergo an abortion under China's family planning policy and that she had fled the country because the government wanted to insert an intrauterine device, Zheng was placed in removal proceedings pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). On August 11, 2000, after Zheng was warned that if she knowingly filed a frivolous application for asylum, she would be forever barred from receiving any benefits under the Immigration and Nationality Act ("INA"),*fn2 Zheng filed an asylum application (the "August 2000 Application") asserting that she had suffered past persecution and feared future persecution under China's family planning policy.
At a January 31, 2001 hearing, Zheng withdrew her April 2000 Application with prejudice. On May 25, 2001, she filed a new application seeking withholding of removal under the Convention Against Torture (the "May 2001 Application"), on the grounds that if she returned to China she would be harmed by the loan sharks from whom she had borrowed money to come to the United States or tortured by Chinese authorities for illegally entering this country. In her May 2001 Application, Zheng stated that she had "withdrawn [her] previously filed asylum application based on China's coerceive family planning policy because [she] believe[s] that it was wrong to lie to the Immigration Court." Certified Administrative Record ("C.A.R.") 537.
On April 30, 2003, at the merits hearing on her May 2001 Application, Zheng testified, inter alia, that she had never had any problems under China's family planning policy, that her first application was false, and that she had been told to use that story by the smugglers who had arranged her entry into the United States. After Zheng finished testifying, the IJ asked her lawyer to explain whether he "should or should not make a frivolousness finding" and stated that he was "not sure" whether 8 C.F.R. § 1208.20 "allows discretion." Id. at 258-59 ("I'm not sure that [§ 1208.20] allows discretion does it?"). Zheng's attorney argued that the IJ had discretion whether to enter such a finding, and that Zheng should be treated leniently because she had voluntarily come forward with the truth more than two years earlier and was only eighteen when she entered the United States. By contrast, the government took the position that frivolousness findings are "not discretionary" and that "if something falls within [the] definition [of a frivolous application], then the Court shall make such a determination." Id. at 261. In an oral decision entered on the same day as the merits hearing, the IJ agreed that Zheng's youth and forthrightness were "favorable factors," but held that he lacked discretion under the statute and implementing regulations not to enter a frivolousness finding. Id. at 193. He also concluded that Zheng's withdrawal of her false application had no effect on the applicability of the frivolousness bar. Accordingly, because he found that Zheng deliberately made a materially false asylum application after receiving adequate warning of the consequences, the IJ imposed a frivolousness finding against her.*fn3 The BIA affirmed the IJ's decision without opinion on August 27, 2004. Zheng timely appealed. By opinion dated February 1, 2008, this Court found that Zheng's petition deliberately contained fabricated material elements and that she had received the required procedural safeguards. Mei Juan Zheng, 514 F.3d at 180-81. Nevertheless, this Court vacated the BIA's frivolousness finding and remanded the case to the BIA to consider two questions. Id. at 181. First, the Court asked the Board to determine whether an "IJ's authority to 'determine that an alien has knowingly made a frivolous application for asylum' [is] limited to circumstances in which the IJ makes 'a final determination on such application.'" Id. (emphasis omitted). This question arose from the Court's observation that there are at least two ways to interpret § 1158(d)(6), which states that an "alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application." Id. (emphasis omitted). Section 1158(d)(6) could be read to preclude a frivolousness finding on a withdrawn application, as there has been no "final determination" on such an application. Id. Alternatively, the Court noted that § 1158(d)(6) may permit IJs to make frivolousness findings on withdrawn applications. Id. Under this interpretation, IJs would not be limited to making frivolousness findings on applications pending before them. Id.
Second, the Court requested that the Board consider whether "an IJ retains any discretion under 8 U.S.C. § 1158(d)(6) to decline to make a frivolousness finding even if the IJ finds that the statutory and regulatory conditions for frivolousness have been met." Id. at 182. Although the IJ who decided Zheng's case found that he lacked discretion, this Court noted that other IJs have not considered themselves "bound to make findings of frivolousness simply because an applicant has admitted to deliberately making false material statements in a pending or prior asylum application." Id. at 183. Further, this Court recognized that the "statutory and regulatory language is not as unambiguous as the IJ's decision [in this case] suggests." Id. By unpublished opinion dated August 30, 2010 (the "August 30 Opinion"), the Board found that the first issue raised by this Court had been resolved by its precedential decision Matter of X-M-C-, 25 I. & N. 322 (B.I.A. 2010). There, the BIA held that the INA and its regulations permit IJs to enter frivolousness findings on any filed application, regardless of whether it has been withdrawn, because a frivolousness finding itself constitutes a "final determination on such application."
As for this Court's second question, the Board opined that an IJ does not retain discretion to decline to enter a frivolousness finding once he determines that the alien has filed a frivolous application. In support of its decision, the Board first argued that while no language in the INA or its implementing regulations renders the frivolousness determination discretionary, the use of the term "shall" in 8 U.S.C. § 1158(d) supports the conclusion that a frivolousness finding must be entered if certain safeguards have been provided. Next, turning to those "circumstances in which it appears that Immigration Judges have declined to make frivolous application findings despite indications that material portions of an application have been fabricated," the BIA explained: [s]uch rulings may occur due to factual findings made by an Immigration Judge that particular elements of the requirements set forth in section 208(d)(6) of the Act, section 1208.20 of the regulations, or Matter of Y-L-[, 24 I. & N. Dec. 151 (BIA 2007)], have not been satisfied. The law also is clear that while an adverse credibility determination may trigger a frivolous application inquiry, an adverse credibility determination does not necessitate such ...