Under INA §208(d)(6), an applicant who knowingly makes a frivolous application ‘shall be permanently ineligible for any benefits under the INA, (except for withholding of removal) if the applicant was given notice of the consequences of filing a frivolous asylum application. Therefore, foreign nationals should think twice before filing any such frivolous applications. Should a foreign national become permanently ineligible under this provision, the foreign national will not be able to immigrate to the U.S. in the future, even if the foreign national later has a legitimate immigrant petition filed on their behalf.
For those individuals that may have filed questionable asylum applications in the past and are considering seeking U.S. immigration benefits in the future, they are strongly encouraged to discuss their past asylum claim with an experienced immigration attorney to determine if the foreign national was indeed found to have filed a frivolous application for asylum based on the applicable federal regulations and case law precedent. To thoroughly review the past claim, the foreign national may need to first file Freedom of Information Act (FOIA) requests to obtain a copy of their files from the relevant government agencies.
The regulation to determine if an asylum application is frivolous can be found at 8 C.F.R. § 208.20, which reads:
Determining if an asylum application is frivolous. For applications filed on or after April 1, 1997, an applicant is subject to the provisions of section 208(d)(6) of the Act only if a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application. For purposes of this section, an asylum application is frivolous if any of its material elements is deliberately fabricated. Such finding shall only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim. For purposes of this section, a finding that an alien filed a frivolous asylum application shall not preclude the alien from seeking withholding of removal.
The Board of Immigration Appeals (BIA) has also set out the framework for analyzing whether a finding by an Immigration Judge (IJ) for a frivolous determination meets the regulations requirements. In re Y-L-, 24 I. & N. Dec. 151, 154 (BIA 2007). Specifically, the BIA held the following requirements:
- Notice to the alien of the consequences of filing a frivolous application;
- A specific finding by the Immigration Judge or the Board that the alien knowingly filed a frivolous application;
- Sufficient evidence in the record to support the finding that a material element of the asylum application was deliberately fabricated; and
- An indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.