UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO MIN CHEN,
MICHAEL B. MUKASEY, Attorney
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 12, 2008—Pasadena, California
Filed June 3, 2008
Before: Stephen S. Trott, Richard R. Clifton, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Trott;
Concurrence by Judge Clifton
Howard Hom, Los Angeles, California, for the petitioner.
John M. McAdams and Paul Fiorino, United States Depart-
ment of Justice, Washington, DC, for the respondent.
TROTT, Circuit Judge:
Xiao Min Chen, a native and citizen of China, seeks review
of the Board of Immigration Appeal’s (“BIA”) decision
affirming the immigration judge’s (“IJ”) decision declaring
Chen’s asylum application frivolous. At a hearing in April of
CHEN v. MUKASEY
2002, Chen admitted that the contents of her asylum applica-
tion were false, that the information she provided to an asy-
lum officer in an April 1999 interview was false, and that the
marriage and birth certificates she provided to the asylum
officer were false. Consequently, the IJ found that, pursuant
to 8 U.S.C. § 1158(d)(6), Chen had knowingly filed a frivo-
lous application for asylum. Because a finding of frivolous-
ness makes an alien permanently ineligible for benefits under
the Immigration and Nationality Act (“INA”), the IJ denied
both Chen’s application for waiver of inadmissibility and her
application for adjustment of status based on her marriage to
a United States citizen.
Chen argues that because she withdrew the application
prior to testifying in support of it and prior to a final determi-
nation on the application, the IJ erred. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a)(2)(D), and in light of a recent
decision in the Second Circuit, we grant the petition and
remand to the BIA to determine in the first instance the proper
interpretation of 8 U.