In 1996 the U.S. Congress changed the law regarding asylum by imposing a new potential penalty for all asylum applicants who filed applications after April 1, 1997. This new penalty would bar any applicant, who filed a frivolous application, from receiving any benefit under the Immigration and Nationality Act (INA). This means, if the Immigration Judge finds that you filed a frivolous application, you will be permanently barred from receiving benefits like, asylum, adjustment of status, and temporary protected status, etc. However, even a frivolous finding will not bar you from receiving withholding of removal under INA § 241 or protection under Article III of the United Nations Convention Against Torture (CAT).
There is a big difference between filing a frivolous asylum application and simply being found not credible by an asylum officer or an Immigration Judge. To be considered frivolous, the Board of Immigration Appeals has required satisfaction of these four elements: (1) the respondent must receive notice of the consequences of filing a frivolous application; (2) the Immigration Judge must make a specific finding that the alien knowingly filed a frivolous application; (3) there must be sufficient evidence that a material element was deliberately fabricated; and (4) there must be an indication that the respondent has been afforded a sufficient opportunity to account for any discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 IN Dec. 151 (BIA 2007).
Once you sign and file a form I-589 Application for Asylum that contains false statements that are material to your claim or false documents to support the application, there is no putting the toothpaste back in the tube. Withdrawing your asylum application or going forward on another form of relief is not a defense to filing the frivolous application in the first place. Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010).
The U.S. Court of Appeals for the Eleventh Circuit recently issued a published decision regarding asylum applications that may be considered frivolous under INA § 208(d)(6) and 8 C.F.R. § 208.20. In that case, Ruga v. U.S. Att’y Gen., case number 13-14377, a respondent filed an asylum application, which she admitted contained a number of false statements about harm she suffered in Albania. The respondent continued with those false statements during her asylum interview before USCIS. Her case was referred to the Immigration Judge, who found that she filed a frivolous asylum application and ordered her removed from the U.S. On appeal, the respondent argued that the written warnings on the I-589, which she signed, and the oral warnings provided at the asylum office, which she acknowledged receiving, were not enough to constitute sufficient notice under the law.
The Court of Appeals disagreed, finding that because the respondent did not deny receiving, reading or understanding the warnings on the I-589 or at the asylum office, the failure of the Immigration Judge to again provide warnings when she was in proceedings did not render the initial warnings insufficient. The Court of Appeals upheld her removal order.
The experienced immigration attorneys at Shorstein, Lasnetski and Gihon can help you during all stages of your claim for asylum, withholding of removal or CAT protection. Call us today.