Newark, NJ- A newly popular tactic to get into immigration court or delay removal is to apply for asylum and withdraw the application when the applicant appears in immigration court. A strategic claim of asylum may delay deportation, but there are risks to filing a frivolous asylum claim. That is exhibited by a recent case before the Board of Immigration Appeals.
In Matter of M-S-B-, the Board of Immigration Appeals was tasked with deciding if a strategic claim of asylum was frivolous and if the applicant should be permanently barred from the U.S. The case can offers insight into what is considered a frivolous asylum claim and the potential consequences of making such a claim.
The case centered on an immigrant from Guinea who entered the U.S. with a nonimmigrant visa in November 1997 and remained in the country after his visa expired. In December of 2000, the applicant filed for asylum, claiming that he entered the U.S. in the December of 1999. He also claimed he was a Mauritanian slave.
Once the respondent in Matter of M-S-B- appeared before an immigration judge, he withdrew his asylum application and requested waivers and an adjustment of status. An immigration judge then determined the respondent deliberately falsified his date of entry and ruled that his asylum claim was frivolous.
To determine if an asylum claim is frivolous, the immigration judge or BIA looks at four aspects of the respondent’s case. First, judges ask if the applicant is aware of the consequences of submitting a frivolous asylum application. Next, a judge must determine if the respondent knowingly filed a frivolous claim. Also, the court record must include evidence that a “material element” of an asylum application was purposely fabricated. Finally, an immigrant must be given a chance to account for any discrepancies in the asylum claim or unlikely aspects of their application.
The respondent argued that his request for asylum should not be considered frivolous because his application was filed after his visa expired, so any factors of his application that were fabricated were not material to his claim. The immigration judge disagreed with those assertions, and concluded the respondent was barred from applying for adjustment of status or waivers under Section 208(d)(6) of the Immigration Nationality Act. That determination meant the respondent would be removed and permanently barred from entering the U.S.
The respondent appealed the immigration judge’s decision citing a prior case, Luciana vs. Attorney General of the United States, before the Third Circuit Court of Appeals. In that case, the appellate court concluded that a time-barred asylum application was not subject to the frivolous determination because the misrepresentation in Luciana was not relevant “to the timeliness of her application.” Therefore, her misrepresentation was not material to her claim because she did not deliberately falsify her entry date. However, the BIA found in Matter of M-S-B-, that the falsification of his entry date was material to his asylum claim. His appeal was denied and he was permanently prohibited from entering the U.S.
This case provides insight into how immigration courts might decide in regards to frivolous asylum cases. It also makes it clear that if even if an individual withdraws an asylum application, they are subject to a finding of frivolousness that would prevent them from ever obtaining legal status in U.S.
Making a frivolous asylum claim may solve an immigrant’s immediate problems, but such a claim can jeopardize any chance they have of obtaining legal status in the future. If a lawyer or anyone suggests you should make a claim of asylum and withdraw it once you are before an immigration judge, you should strongly consider getting a second opinion and make sure you understand the risks involved, because you could be permanently barred. If a lawyer advises you to lie or misrepresent a fact on your application, you should absolutely not work with that lawyer. It’s never wise to falsify any immigration application, and as this case demonstrates, there are serious ramifications of misrepresenting any information on an immigration application.
I explain to my clients the possible the benefits of a course of action and the potential downfalls to help them decide how to proceed with their case. Wherever you live, Newark, Jersey City, Elizabeth, anywhere in New Jersey or even another state, if you need advice about your immigration case, call my office at 973-453-2009 and set up a short case evaluation.
Original word count: 736