Proving persecution for an asylum application
Question: I have a friend who came into the U.S and filed a fake asylum application.
Is there anything that can happen?
Answer: Yes. This would be one of the worse things that your friend could do.
In fact, the consequences for filing a frivolous application are extremely severe.
If such a ruling is made, then the law states that this person will NEVER be able to obtain immigration benefits for the rest of his or her life.
Question: How do we know if this ruling is properly made?
Answer: There are three parts to getting a ruling of a frivolous application on an asylum application.
First, the application must be frivolous.
Second, it must be knowingly filed.
Finally, the foreign national must have been given the proper advisals on the consequences of filing a frivolous application.
Question: On the first item, what does frivolous mean?
Answer: This means that the application was simply fake and had absolutely no basis in truth.
Essentially, it was a fraudulent application.
Question: If the asylum application is denied, does that mean that it is frivolous?
Answer: No. Having an asylum application denied is far better than having a frivolous application.
Getting denied might be for a wide variety of reasons such as there was not sufficient proof or that there was an adverse credibility finding, or that the legal basis for the asylum application is not applicable.
These matters could be appealed or a motion to reopen could be made.
Question: How do you know if the foreign national ‘knowingly’ made the frivolous application?
Answer: This is a question of fact. However, if for example, the person came into the United States and did not speak a word of English and a ‘notario’ or somebody claiming to be an expert in Immigration Law simply filled out a fake application so that the foreign national would get a work-permit, then it is arguable it is not knowingly submitted. Especially if the foreign national was just told to sign everywhere without reading the application or understanding the application or what is said.
Question: What types of advisals exactly must be given in order for this section of law to be applicable?
Answer: The law specifies two major advisals that must be given:
1) the right to counsel and
2) what happens if a frivolous asylum application is filed.
Specifically, if the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice, the alien shall be permanently ineligible for any benefits under the Immigration and Nationality Act.
Question: What is the ‘notice’ you referred to above? Specifically, how does the foreign national have to received the notice?
Answer: It has to be given at the time the asylum application is submitted.
Therefore, if the frivolous asylum application is filed and is knowingly filed, but no advisals given, then the person does not fall under this area of law.
It should then be immediately withdrawn.
Question: If somebody got this ruling, but years later marries a U.S. Citizen and has children and no crimes, can he adjust?
Answer: No. The bar against immigration benefits is for life.
Therefore, I would have to go back to the original ruling and determine if it was incorrect and/or whether one of the elements necessary for the permanent bar to take effect has not been properly complied with by the government.
I would then make a Motion to Reopen to try to get this ruling vacated.
In any case, it is an extremely harsh ruling and must be avoided at all realistic costs.