Xi He v. Bondi: Upholding Frivolous Asylum Findings on Circumstantial Evidence under the Clear and Convincing Standard

Introduction

Xin He, a Chinese national, applied for asylum in the United States. The Department of Homeland Security (DHS) charged her with removability under 8 U.S.C. § 1227(a)(1)(A) on the ground that she obtained asylum by willfully misrepresenting material facts. The Immigration Judge (IJ) found her claim frivolous, denied relief, and the Board of Immigration Appeals (BIA) affirmed. On appeal, the Second Circuit panel (Judges Raggi, Lee, Kahn) reviewed two BIA decisions—one affirming removability and a frivolousness finding, the other denying reconsideration—and denied Xin He’s petitions for review. Central issues include: (1) the sufficiency of circumstantial evidence to meet the “clear and convincing” standard for removability, and (2) the procedural and substantive requirements for finding an asylum application frivolous.

Summary of the Judgment

The Court upheld the IJ’s removability determination under 8 U.S.C. § 1227(a)(1)(A), concluding DHS met its “clear and convincing” burden by showing that Xin He’s asylum claim was fabricated.
The Court affirmed the frivolousness finding under 8 U.S.C. § 1158(d)(6) and 8 C.F.R. § 1208.20(a): material elements of her asylum application were deliberately fabricated.
The Court denied Xin He’s motion for reconsideration as an abuse of discretion, finding no errors of fact or law in the BIA’s decisions.

Analysis

1. Precedents Cited

Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520 (2d Cir. 2005): Standard of review for BIA decisions, especially when the BIA modifies the IJ’s decision.
Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir. 2005): Application of de novo review to mixed questions of law and fact; substantial evidence review for credibility findings.
Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018): Clarified that factual findings—including adverse credibility findings—are conclusive unless no reasonable adjudicator could reach the same result.
Francis v. Gonzales, 442 F.3d 131 (2d Cir. 2006): Defined the “clear and convincing” standard for removability; removability upheld if no rational trier of fact would be compelled to find otherwise.
Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517 (2d Cir. 2007): Emphasized special caution when relying on inter‐affidavit similarities and the need to consider translation or formulaic explanations.
United States v. Zhong, 26 F.4th 536 (2d Cir. 2022): Held that circumstantial evidence can satisfy a “clear and convincing” standard in criminal contexts, supporting its parallel in administrative immigration contexts.
Siewe v. Gonzales, 480 F.3d 160 (2d Cir. 2007): Deference to agency inferences based on common sense; credibility determinations.
Kone v. Holder, 596 F.3d 141 (2d Cir. 2010): Return trips to country of origin may be relevant to credibility in asylum proceedings.
Matter of B-Y-, 25 I. & N. Dec. 236 (BIA 2010) and Matter of Y-L-, 24 I. & N. Dec. 151 (BIA 2007): Procedural prerequisites for frivolous asylum findings.
Biao Yang v. Garland, 496 F.3d 268 (2d Cir. 2007): Four-part test to ensure procedural fairness in frivolousness determinations.

2. Legal Reasoning

A. Removability under 8 U.S.C. § 1227(a)(1)(A)
DHS must prove by “clear and convincing evidence” that an alien obtained asylum by fraud or willful misrepresentation of a material fact (8 U.S.C. §§ 1182(a)(6)(C)(i), 1229a(c)(3)(A)). The IJ—later affirmed by the BIA—relied on:

The asylum‐preparer (John Wang) pleaded guilty to a multi‐year conspiracy to submit fraudulent asylum applications during the period Xin He applied.
Striking similarity in structure, language, and legalistic phrasing between Xin He’s English‐language statement and statements by Wang’s other clients.
Contradiction between her asylum narrative (being fined) and her adjustment of status application (no fine), both signed under penalty of perjury.
Her voluntary return trip to China shortly after receiving permanent residency, inconsistent with a genuine fear of persecution.

The Court held that circumstantial evidence can satisfy clear and convincing proof (United States v. Zhong) and that the IJ properly weighed explanations offered by Xin He, declining to credit her self‐serving testimony once she had sworn to the contrary.

B. Frivolous Asylum Application under 8 U.S.C. § 1158(d)(6)
An application is frivolous if “any of the material elements . . . is deliberately fabricated” (8 C.F.R. § 1208.20(a)(1)). DHS bears the preponderance‐of‐the‐evidence burden (Matter of B-Y-). The IJ made:

A specific finding that Xin He knowingly filed a fraudulent application.
Sufficient evidentiary support—identical to the removability findings—showing deliberate fabrication.
Procedural safeguards: notice of consequences appeared on her signed Form I-589, and she had a full opportunity at hearing to explain discrepancies.

The Court found no procedural defect and no reversible error.

C. Motion for Reconsideration
Under 8 C.F.R. § 1003.2(b)(1) and Jin Ming Liu v. Gonzales, the BIA may deny a motion for reconsideration that merely repeats previously rejected arguments. Xin He’s motion invoked an equivalent burden standard (“clear, unequivocal, and convincing”) and attacked the credibility assessment of her China trip; both arguments were squarely addressed and properly rejected by the BIA.

3. Impact

This decision clarifies and reinforces several principles:

Circumstantial evidence, including affiliation with a fraudulent preparer and inter‐affidavit similarities, can sustain the “clear and convincing” standard for removability and the lower preponderance standard for frivolousness.
Applicants who sign asylum or adjustment forms under penalty of perjury are presumed aware of their contents, placing the onus on them to explain discrepancies.
Return travel to the country of claimed persecution, though not dispositive, may factor into credibility and reasonable fear analyses.
The Four-Part Test from Biao Yang remains the blueprint for fair frivolousness determinations: notice, specific finding, evidentiary support, and opportunity to explain.

Future courts will likely cite Xi He v. Bondi when assessing:

How to weigh template similarities in asylum affidavits.
The sufficiency of circumstantial evidence under varying burdens of proof.
Procedural due process in frivolousness findings.

Complex Concepts Simplified

Removability vs. Inadmissibility: An alien can be deportable (removable) if, at the time of obtaining status, she was inadmissible (e.g., via fraud).
Clear and Convincing Evidence: A medium‐high standard—higher than “preponderance” but lower than “beyond a reasonable doubt.” It can rest on circumstantial proof.
Frivolous Application: An asylum claim is frivolous if any material part is knowingly false, triggering permanent ineligibility for asylum or related relief.
Substantial Evidence Review: Courts defer to factual findings unless no reasonable fact‐finder could reach the same conclusion.

Conclusion

Xi He v. Bondi is a landmark reaffirmation that administrative immigration bodies may rely on circumstantial evidence—and need not always credit implausible explanations—when resolving removability and frivolousness. The case underscores the critical importance of consistency in sworn statements, the procedural safeguards in frivolousness adjudications, and the deference owed to reasonable agency credibility assessments. As a guidepost for future asylum and removal cases, it cements the parameters within which fraud and frivolousness can be established, helping to deter abusive filings while maintaining due process for bona fide applicants.