Huang (not precedential): Frivolousness Finding Properly Exhausted By Challenging Asylum Ruling

In Huang v. Mukasey, No. 06-4434 (3d Cir. Feb. 20, 2008) (not precedential), the Third Circuit held that the issue of whether an asylum application should be deemed as legally frivolous was sufficiently exhausted by raising to the BIA a challenge to the IJ's adverse credibility finding and resulting denial of asylum.

Because the BIA had the chance to resolve the controversy and correct its own errors, the issue was properly exhausted. In this case, the government asked for a remand if the issue was exhausted so that the BIA could apply the high standard required to find an asylum claim to be frivolous, as listed in Luciana v. Att'y Gen., 502 F.3d 273, 281 (3d Cir. 2007).

The government's effort to question whether an issue was exhausted may lead to long, drawn-out arguments in immigration court and the BIA just to make crystal clear that all arguments are being raised and exhausted with those courts. It will make those courts bogged down with additional questions and lengthy objections, but that is what the government's stance on fighting the issue of exhaustion will cause.