New York Lawyer's Legal Updates

Fraud in Asylum Application

Author: US Asylum attorney Alena Shautsova

Thousands of people come into the United States every year to find shelter and protection form terror and abuse in their home countries. The US provides for this protection in the form of asylum: status that allows non-US citizens to live and work in the US and apply for green card (permanent residency) even if such persons entered the country illegally, as long as they can demonstrate that there is chance they would be hurt in their home country due to their nationality, race, religion, political opinion or membership in a particular social group.

Some, however, use application for asylum to receive employment authorization and/or transfer their case to Immigration court so that they can apply for cancellation of removal or some other benefit available only in court. Is it so wise to do?

Obviously, it is a wrong thing to do: to file asylum claims not to receive asylum but to receive some other benefit. But not only is it wrong, it would make one permanently inadmissible in the US: even if that person marries a US citizen or qualifies for some other relief like U visa or VAWA status. The only relief available would be withholding of removal.

The law is very strict, and has a good point to be so: many times the refugees and asylees have no evidence to prove their stories except for their own testimony. The government, the courts and American people put their trust in those who claim they were abused. That is why if that trust is broken, the penalty is so harsh.

In recent BIA decision Matter of P-S-H-, 26 I&N Dec. 329 (BIA 2014) the Board of Immigration Appeals held that the asylum applicant does not even have to be aware of fraud, if the DHS can show that “there was fraud in asylum application.” While such a finding is not sufficient to charge a person with filing frivolous asylum claim, it is sufficient to terminate asylum status, if DHS can also show that applicant was not qualified for asylum at the time of the fraudulent filing. The Board of Immigration Appeals (“Board”) has formulated a four-part test to determine if a respondent has filed a frivolous application: (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 I&N Dec. 151 (BIA 2007).

The bottom line is that one should not even think about filing a frivolous asylum claim, and stay away from anybody who encourages them to do so.

04 July 2014
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