How To Correct Errors To Avoid Finding Of Frivolousness

Because the consequences of a frivolous finding render an applicant permanently ineligible for any immigration benefit,

… a client who has made misrepresentations on an asylum application is walking on very thin ice. 

Surprisingly, misrepresentations are not uncommon. For example, the application asks for residences during the last five years and, for convenience, applicants omit addresses where they lived for a short time.

Fortunately, some misrepresentations are irrelevant. A frivolous finding can only be made when an applicant “deliberately fabricates” a “material element” of the asylum application. Thus, correcting errors to avoid a frivolous finding depends on those two key terms. Most importantly, a frivolousness finding requires a showing by the government of preponderance of the evidence.  Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007).  The first line of defense, as always, is arguing that the government did not meet its burden.

Another strong defense is demonstrating that the applicant’s mens rea was neglect not intent. If there were errors on the application, use evidence to prove that they were unintentional mistakes by the applicant OR that the information in the application was prepared by another person. Not the applicant, not frivolous. Also, a mindset of intent requires a lucid mind. If they exist, use documents to demonstrate troubles with the applicant’s mental health.

Second, note the use of the adjective material. It is a pillar of law that every word in a regulation, rule, or law has meaning. The word “material” implies that not all elements of the asylum application are material. Logically then, a finding of frivolousness cannot be based on a misrepresentation relating to a non-material element of the asylum claim. An element cannot be material if, given the true information, the result would have been the same. See Matter of Bosuego, 17 I&N Dec. 125 (BIA 1980).  

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Using an example from a case, one client lied to an asylum officer and said she was gang raped when in reality the persecution she suffered was rape by one person. Although the harm suffered is an element of an asylum case because it goes directly to the issue of whether the applicant suffered past persecution, one can argue that whether the applicant was raped by one person or several is not a material element to the application. Moreover, despite the false information, the Asylum Officer denied the case based on lack of past persecution or likelihood of future persecution. Before the Immigration Judge, my client told the truth and the Court held that rape did constitute past persecution. She won her asylum case. 

Last, consider arguing that the applicant was not given sufficient notice as to the consequences or an opportunity to explain any discrepancies.  In one of my cases, the Judge asked a respondent why the application said he lived in one town during a specific time period, but testified he lived in a completely different town during that time period.  The applicant – a 15-year-old child – continued to repeat nonsensical explanations.  Seeing that the Judge was giving repeated warnings as foundation for a frivolousness finding, I argued during closing that my client was not trying to deceive the Court.  The boy just did not have the capacity to understand the questions.  Although the asylum case was lost, the frivolous finding was avoided.

Asylum is protection from harm, not a blue ribbon for remembering every past detail.