What Is a “Frivolous Asylum” and What Are Its Consequences

We have all seen, in the I-589, and heard the frivolous asylum warnings given to applicants for asylum. But what exactly is a frivolous asylum and what are the consequences?

Frivolous Asylum Defined

In the 1990’s, Congress imposed a new rule for asylum applications filed on or after April 1, 1997. The new rule states in pertinent part:

“…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.” (emphasis added) 8 C.F.R § 1208.20. 

Many folks believe that a case that does not succeed is a “frivolous” case. This is a mistaken believe not based in the law. The Code specifically defines a “frivolous” case as a case which is “fabricated”. Id. 

Who determines if an asylum application is frivolous?

Only the Immigration Judge (IJ) or the Board of Immigration Appeals (BIA) can find that an asylum application is “frivolous”. 8 C.F.R. § 1208.20.  In 2007, the BIA devised a four part-test that must be followed in determining if a respondent has filed a frivolous application. That test is delineated in Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), which states:

  • the respondent must receive notice of the consequences of filing a frivolous application;
  • the IJ must make a specific finding that the alien knowingly filed a frivolous application;
  • there must be sufficient evidence that a material element was deliberately fabricated; and 
  • 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.

For a frivolous finding to be upheld, the Court “must provide cogent and convincing reasons for finding by a preponderance of the evidence that an asylum applicant knowingly and deliberately fabricated material elements of the claim.” Id. at 158. While the IJ must find “proof that conduct was knowing or deliberate,” this finding “may be demonstrated by circumstantial evidence.” Id. at 158.  

What are the Consequences of Filing a Frivolous Asylum?

A finding of submission of a frivolous application renders a respondent permanently ineligible for any benefit under the Immigration and Nationality Act (INA), aside from withholding of removal. INA § 208(d)(4); 8 C.F.R. § 1208.20. In addition, a frivolous finding does not bar a person from seeking relief under Article III of the Convention Against Torture because this relief is not a benefit under the INA. 

Patricia Hernandez, Esq.
Patricia Hernandez, Esq.

Patricia Hernandez is a founding partner of Rotella & Hernandez, a full-service immigration and family law firm. Ms. Hernandez focuses her practice exclusively to the area of Immigration and Nationality Law.
In 2020, Ms. Hernandez was voted by her peers as one of Florida’s Legal Elite in the area of Immigration and Nationality Law. Ms. Hernandez has also been recognized by the community for her advocacy of immigrant and LGBTQ rights. She received the Visionary Award from the Miami-Dade County Bar Association, the Community Champion Award from the Miami-Dade County Hispanic Affairs Advisory Board, and the People’s Luminary Award from SAVE, a non-profit organization dedicated to protecting and advocating for the LGBTQ community.

Catholic Legal Services

Asylum Symposium

December 4, 2020

Patricia Hernandez will be a featured speaker.

For more information on this day-long event, please contact us!

Leave a Reply

Your email address will not be published. Required fields are marked *