M-A-F-

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Matter of M-A-F- et al., Respondents
Decided August 21, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where an applicant has filed an asylum application before the May 11, 2005,
effective date of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119
Stat. 302, and, on or after that date, submitted a subsequent application that is properly
viewed as a new application, the later filing date controls for purposes of determining
the applicability of section 208(b)(1)(B)(iii) of the Immigration and Nationality Act,
8 U.S.C. § 1158(b)(1)(B)(iii) (2012), to credibility determinations.
(2) A subsequent asylum application is properly viewed as a new application if it
presents a previously unraised basis for relief or is predicated on a new or substantially
different factual basis.
(3) Where an alien has filed more than one application for asylum and the subsequent
one is deemed to be a new application, the filing date of the later application controls
for purposes of determining whether the 1-year statutory time bar applies under
section 208(a)(2)(B) of the Act.
FOR RESPONDENTS: Manpreet Singh Gahra, Esquire, Berkeley, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: 	Kathleen W. Taylor,
Assistant Chief Counsel
BEFORE: 	Board Panel: 	GUENDELSBERGER and MALPHRUS, Board Members;
GELLER, Temporary Board Member.
MALPHRUS, Board Member:
This case was last before us on November 5, 2012, when we dismissed
the respondents’ appeal from an Immigration Judge’s decision, effective on
March 16, 2011, denying their applications for asylum, withholding of
removal, and protection under the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, 	adopted and
opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR
Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”). 	The 	respondents 	filed 	a 	petition 	for 	review 	with 	the
United States Court of Appeals for the Ninth Circuit, which has remanded

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the record to the Board. 	The record will be remanded to the Immigration
Judge for further proceedings.1
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Pakistan who was admitted to
the United States as a nonimmigrant visitor for business on October 11,
2000, 	with 	authorization 	to 	remain 	until 	November 	10, 	2000. 	On
February 26, 2003, the respondent filed an Application for Asylum and
Withholding of Removal (Form I-589) and a five-page written declaration
with the former Immigration and Naturalization Service (“INS”). 	He
subsequently 	appeared for an 	interview 	with 	an 	asylum officer. 	On
May 20, 2005, the Department of Homeland Security (“DHS”) served the
respondent with a notice to appear for removal proceedings. 	At a hearing
on May 4, 2006, he conceded removability as an overstayed nonimmigrant
and filed a second Form I-589.
During 	his 	testimony, 	the 	respondent 	acknowledged 	that 	his 	first
application contained a name and birth date somewhat different from his
own. He also admitted that the application contained inaccurate statements
indicating that he was arrested five times on specific occasions based on his
participation in rallies or protests involving the Pakistan Peoples Party
(“PPP”). 	The respondent also claimed in that application that he had been
held for certain specific periods of time ranging from 6 days to 2 months
and that he was tortured by various specific means during those detentions.2
By contrast, in his 2006 application, the respondent stated that he had
participated in two PPP protests but evaded arrest both times, and he made
no claim that he was ever detained or tortured.
In her decision, the Immigration Judge found that the respondent was
ineligible for asylum because his application was not timely filed within
1 The lead respondent’s wife and son, who are derivatives of his application, also filed
independent asylum applications. 	They concede that they are not eligible for asylum
based on those applications because they were not timely filed. Since we are remanding
the record, we need not resolve any issues related to their applications at this time. Our
decision will therefore focus on the claims of the lead respondent, whom we will refer to
as “the respondent.”
2 The falsity of the application came to light pursuant to a DHS investigation of a
person who assisted the respondent in the preparation of his 2003 asylum application and
acted as a translator during his interview. That person was eventually convicted for his
role in preparing false asylum applications. 	At the respondent’s hearing, the DHS
presented testimony from the officer who investigated the individual, as well as that of
the asylum officer who interviewed the respondent. The Immigration Judge found these
witnesses to be credible.

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a year of his arrival, as required by section 208(a)(2)(B) of the Immigration
and Nationality Act, 8 U.S.C. § 1158(a)(2)(B) (2006), and his untimely
filing was not excused by changed or extraordinary circumstances pursuant
to section 208(a)(2)(D). The Immigration Judge evaluated the credibility of
the respondent’s claims for withholding of removal and protection under
the Convention Against Torture pursuant to the provisions of section
208(b)(1)(B)(iii) of the Act, which were enacted by the REAL ID Act of
2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 (“REAL ID Act”).
In doing so, she considered the respondent’s filing date to be that of his
second application in 2006, relying on Matter of S-B-, 24 I&N Dec.
42 (BIA 2006), which held that the REAL ID Act amendments apply to
applications filed after May 11, 2005. 	Applying these provisions, the
Immigration Judge found that the respondent’s claim was not credible.
We dismissed the respondent’s appeal from that decision, agreeing that
the REAL ID Act applied to the respondent’s claims and upholding the
Immigration Judge’s adverse credibility determination. 	We alternatively
determined that the adverse credibility finding would stand under the law
that was applicable prior to the REAL ID Act. 	We did not reach the
question whether the respondent was ineligible for relief because his
asylum application was untimely filed.
The Ninth Circuit has remanded the record for us to further consider,
among other issues, the filing date of the respondent’s asylum application
for purposes of determining (1) whether the REAL ID Act applies, and
(2) whether his application was statutorily barred as untimely filed. 	The
DHS requests that we make determinations regarding these two issues and
remand the record to the Immigration Judge. The respondent has submitted
no response to the DHS’s request. We conclude that the respondent’s claim
for relief is subject to the provisions of the REAL ID Act and that the date
of his second asylum application is determinative of whether his asylum
application was timely filed.3
II. ANALYSIS
A. Application of the REAL ID Act
The REAL ID Act amended the statute by adding the provisions of
section 	208(b)(1)(B)(iii) 	of 	the 	Act, 	which 	specify 	the 	factors 	to 	be
3 We review the Immigration Judge’s findings of fact, including those relating to
credibility, to determine if they are clearly erroneous. 8 C.F.R. § 1003.1(d)(3)(i) (2015).
We review de novo all other questions of law, discretion, and judgment, including
whether the parties have met the relevant burden of proof. 8 C.F.R. § 1003.1(d)(3)(ii).

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considered in making a credibility determination. 	See REAL ID Act
§ 101(a)(3), 119 Stat. at 303; see also sections 240(c)(4)(C), 241(b)(3)(C)
of the Act, 8 U.S.C. §§ 1229a(c)(4)(C), 1231(b)(3)(C) (2012). 	This
provision applies to asylum applications that were filed on or after May 11,
2005, whether filed initially before an asylum officer or an Immigration
Judge. 	REAL ID Act § 101(h)(2), 119 Stat. at 305 (providing that the
changes to the Act “shall apply to applications for asylum, withholding,
or other relief from removal made on or after” the May 11, 2005, date of
enactment); see also Matter of S-B-, 24 I&N Dec. at 43.
The respondent submitted two asylum applications. 	The first was
affirmatively 	filed 	with 	the 	former 	INS 	in 	2003, 	and 	the 	other 	was
defensively filed in removal proceedings before the Immigration Judge in
2006. 	The initial question before us is whether the REAL ID Act’s
credibility 	provisions 	apply 	to 	the 	respondent’s 	current 	claims. 	See
Shrestha v. Holder, 590 F.3d 1034, 1039−45 (9th Cir. 2010) (discussing
credibility determinations under the REAL ID Act); see also Li Hua Yuan
v. Att’y Gen. of U.S., 642 F.3d 420, 425 n.9 (3d Cir. 2011) (“Whether the
REAL 	ID 	Act 	applies 	can 	be 	significant 	because 	it 	imposes 	certain
conditions upon asylum applicants regarding credibility and corroboration
evidence.”).
The Immigration Judge found that the respondent’s application that was
filed before her was subject to the provisions of the REAL ID Act. 	The
respondent 	argues 	that 	this 	2006 	filing was 	an 	amended 	or renewed
application and therefore is not subject to the REAL ID Act. According to
the DHS, the REAL ID Act does apply because the respondent’s first
asylum 	application 	was 	fraudulent 	and 	was 	replaced 	by 	the 	second
application, which was not simply an amendment to his initial filing.
The regulations state that an asylum officer or Immigration Judge may
permit an asylum applicant “to amend or supplement” the application upon
request of the alien and as a matter of discretion. 	8 C.F.R. §§ 208.4(c),
1208.4(c) (2015). 	However, the regulations do not address whether such a
supplemented or amended application should be considered a separate
filing for purposes of determining if the REAL ID Act applies. 	One
possible interpretation could be that the REAL ID Act provisions apply to
any asylum application filed “on or after” the May 11, 2005, effective date,
making such an application subject to the REAL ID Act, regardless of its
similarity to a previous one. However, given that the regulations allow for
the amendment of an application, we believe that the key consideration in
determining if the REAL ID Act applies should be whether the later
application 	is 	essentially 	a 	new 	one, 	rather 	than 	an 	amendment 	or
supplement to the original application.

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We find support for this position in Li Hua Yuan, 642 F.3d 420, where
the 	court 	found 	that 	the 	REAL 	ID 	Act 	would 	apply 	to 	an 	asylum
application submitted in reopened proceedings in July 2005, even though
the respondent had previously filed an application that was denied in 2002.
The court held that the second application “raises a new basis for asylum
following a motion to reopen and so is a new application rather than a
continuation of the initial one.” Id. at 425 n.9.
To determine whether a second or subsequent asylum application is
“new” and thus subject to the REAL ID Act, we must examine the specific
facts and circumstances of each filing. 	A later filed application that
presents a previously unraised basis for relief—such as a fear of persecution
on account of a different protected ground—will generally be considered a
new application. 	Even an application that is based on the same protected
ground may also be considered a new application if the alien’s later claim is
predicated on a new or substantially different factual basis. 	By contrast, a
subsequent application that merely clarifies or slightly alters the initial
claim will generally not be considered a new application.
The respondent filed an asylum application in 2003, which he admitted,
and the Immigration Judge found, was based on a false narrative that he had
been arrested following his participation in PPP rallies or protests and was
detained five times for periods ranging from 6 days to 2 months, during
which detentions he had been tortured. 	Unlike the initial application, the
respondent’s second application, filed in 2006, made no claim that he had
been arrested, detained, or tortured. Thus, while the second application was
based 	on 	the 	same 	protected 	ground, 	the 	facts 	presented 	there 	are
substantially different from those in the earlier application. 	The second
application 	did 	not 	simply 	correct 	minor 	errors 	or 	omissions 	present
in the existing claim. 	It was not “a continuation of the initial one.”
Li Hua Yuan v. Att’y Gen. of U.S., 642 F.3d at 425 n.9. 	Rather, the 2006
filing effectively substituted a new claim for the original one. Under these
circumstances, the second application did not supplement or amend the
initial application and was, instead, properly viewed as a new application.
We conclude that an alien should not be able to bypass the credibility
provisions of the REAL ID Act simply because he or she filed an earlier
application. 	This is particularly true here because the respondent’s initial
application 	contained 	false 	information, 	including 	details 	of 	specific
incidents of arrest and torture that were central to his original claim but
were not included in his later application. 	We therefore agree with the
Immigration Judge that the credibility provisions of the REAL ID Act
apply to the respondent’s current claim.
Where 	an 	applicant’s 	initial 	asylum 	application 	was 	filed 	before
May 11, 2005, and a second or subsequent one was submitted on or after

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that date, the filing date of the later application controls if it is properly
viewed as a new one. 	We emphasize, however, that the filing of a second
application 	after 	May 	11, 	2005, 	alone 	will 	not 	always 	trigger 	the
application of the REAL ID Act provisions. 	Rather, each case depends on
its own facts and circumstances.
B. Timeliness of an Asylum Application
Section 208(a)(2)(B) of the Act provides that an alien is not eligible to
apply for asylum unless he or she “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.” 	However, an application may be
considered “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.” 	Section
208(a)(2)(D) of the Act; see also, e.g., Vahora v. Holder, 641 F.3d 1038,
1042−48 (9th Cir. 2011); Sagaydak v. Gonzales, 405 F.3d 1035, 1039−41
(9th Cir. 2005); Matter of A-M-, 23 I&N Dec. 737, 738−39 (BIA 2005);
8 C.F.R. §§ 208.4(a)(4), (5), 1208.4(a)(4), (5).
The respondent entered the United States on October 11, 2000, and filed
his 	first 	asylum 	application 	on 	February 	26, 	2003. 	Although 	the
Immigration Judge stated that she “agreed to consider” this the filing date
for purposes of determining whether the statutory time bar applies, we
conclude that the determinative date is May 4, 2006, when the respondent
filed his second asylum application, given that this application is deemed to
be a new one.
In Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008), the Ninth
Circuit agreed with our conclusion that because the alien had initially filed
a 	fraudulent 	asylum 	application, 	the 	date 	of 	his 	second 	application
controlled in determining whether a subsequent application with a new
claim was timely filed. In that case, the applicant had been granted asylum
under a fraudulent identity and reapplied for asylum after being placed in
removal proceedings under his true identity.
Similarly, the respondent in this case applied for asylum under a false
factual predicate and then submitted a new asylum application before the
Immigration Judge after being placed in proceedings. 	Consistent with the
Ninth Circuit’s analysis in Dhital v. Mukasey, we conclude that the date of
the respondent’s second asylum application is the relevant date for purposes
of determining whether the 1-year statutory bar applies. 	Because the
respondent submitted his application on May 4, 2006, almost 6 years after
his arrival in the United States, it was not timely filed. 	Therefore, his
asylum claim is statutorily barred unless he can show either “changed

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circumstances” or “extraordinary circumstances” to excuse the untimeliness
of his application. 	8 C.F.R. § 1208.4(a)(4), (5). 	The Immigration Judge
should further address this issue on remand.4
III. CONCLUSION
The 	respondent’s 	second 	asylum 	application 	is 	a 	new 	application
because it was predicated on a substantially different factual basis. 	Since
that application was filed after May 11, 2005, the provisions of the REAL
ID Act apply, including those relating to credibility. 	The date the second
asylum application was filed is controlling in determining the timeliness of
the respondent’s application for relief. 	Because that application was
submitted almost 6 years after the respondent’s arrival in the United States,
it was not timely filed unless he can establish an exception to the 1-year
filing requirement. 	The record will be remanded for further consideration
of this and any other remaining issues, including those noted in the Ninth
Circuit’s order.
ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing order and for the entry of a new
decision.
4 We note that the Immigration Judge found that the respondent’s 2003 application was
not timely filed and that no extraordinary circumstances excused the delay in filing. See
8 C.F.R. § 1208.4(a)(5). On appeal, the DHS argued that the Immigration Judge made
erroneous findings of fact in her determination, including those regarding when the
respondent first made contact with his second attorney, who he claims rendered
ineffective assistance of counsel. Since the record will be remanded, we will not evaluate
this matter further. 	The Immigration Judge should consider this argument and make
further factual findings and legal determinations, as appropriate.