- DHS and DOJ propose amending the regulations implementing the statutory bar for frivolous asylum applications.
- Under that provision in the INA, aliens who are found to have filed "frivolous" asylum applications are permanently barred from receiving immigration benefits.
- The current regulations provide that an asylum application can only be found to be frivolous "if any of its material elements is deliberately fabricated." This is an exceptionally narrow standard, which is rarely used because it is difficult to apply.
- This interpretation of the term "frivolous" is contrary to Congress's clear intent, and narrower than the manner in which the term was previously defined in the regulations (as well as in the implementing regulation as initially proposed).
- There is a legal distinction between "frivolous" and "deliberate fabrication" that the Clinton administration ignored in drafting the current regulations.
- As proposed, the amended definition of what constitutes a "frivolous" asylum application would include asylum applications that: include "a fabricated essential element"; that are "premised upon false or fabricated evidence" material to the claim; that are "filed without regard to the merits of the claim"; or that are "clearly foreclosed by applicable law".
- The proposed regulations would allow asylum officers to make a "frivolousness" finding — a determination that they are trained to make, but are currently barred from issuing.
- These amendments are overdue. Aliens currently file non-meritorious asylum applications to obtain work authorization, to be placed into removal proceedings to apply for 42B cancellation, and to simply extend their unauthorized stay in the United States — all without threat of sanctions.
- Such worthless asylum applications have flooded USCIS and the immigration courts, delaying the adjudication of valid claims, and taxing adjudicatory resources. The proposed amendments would remove the incentives for those aliens to game our nation's generous asylum laws.
A recent series of posts have analyzed regulatory changes in a Joint Notice of Proposed Rulemaking (JNPR) published three weeks ago by the Department of Justice (DOJ) and the Department of Homeland Security (DHS), proposed to reform the department's implementation of the asylum and expedited-removal provisions in the Immigration and Nationality Act (INA). The next proposal in the JNPR I will address would amend the regulations barring aliens who have filed "frivolous" asylum applications from future immigration benefits, to better reflect congressional intent and clear the way for valid applications to be granted more quickly.
The Frivolous Asylum Bar
These regulations (at 8 C.F.R. §§ 208.20 (for U.S. Citizenship and Immigration Services (USCIS) and 1208.20 (for the immigration courts and the Board of Immigration Appeals (BIA)) implement sections 208(d)(4)(A) and (6) of the INA, governing asylum procedures.
The latter section provides that if the attorney general (now, either the attorney general or the secretary of DHS) determines that an alien has been placed on notice of the consequences of filing a frivolous asylum application, but does so anyway, the alien will be permanently barred from receiving any immigration benefits, period.
The former section contains the notifications that an asylum applicant must be given at the time the alien files an asylum application (Form I-589) to be so barred. That list is limited: the applicant must be notified of his or her right to counsel, and of the consequences of filing a frivolous asylum application.
The I-589 contains a specific written warning, which notifies the applicant before he or she signs that application that if the applicant is found to have filed a frivolous application, the alien will be "permanently ineligible" for all benefits under the INA, and that the alien cannot escape that bar simply because someone else told the alien "to provide false information".
Those provisions were added to the INA by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). I have previously explained that two of the purposes of IIRIRA were "to address weaknesses in border enforcement and asylum processing". The filing of frivolous asylum applications is a significant weakness in our asylum regime, because it allows otherwise removable aliens to remain in the United States indefinitely, as their applications wend their way through the adjudication process (usually with employment authorization).
Congress did not define what constituted a "frivolous" asylum application, but it was not writing on a blank slate. As the JNPR notes, under the then-current iteration of the regulation governing employment authorization for asylum applications (then and now 8 C.F.R. § 208.7) "a frivolous asylum application was defined for purposes of granting employment authorization as one that was 'manifestly unfounded or abusive.'" Thus, if an alien was filing an asylum application in bad faith for purposes of abusing the asylum process (such as, to obtain an employment authorization document (EAD), commonly known as a work permit), the alien would not receive an EAD or be allowed to work. The referenced language has subsequently been excised from that regulation.
Nor was this the only instance in which Congress used the term "frivolous" in IIRIRA. That act added a new section 240(b)(6) to the INA, which allowed an immigration judge (IJ) or the BIA to impose sanctions (including suspension and disbarment) on attorneys for "frivolous behavior" in removal proceedings. That provision has never been implemented (largely because it would also apply to DHS attorneys and therefore violate federal employment laws), but as explained below, it makes clear that Congress's use of the term "frivolous" in IIRIRA extended to the sorts of actions described in 8 C.F.R. § 208.7 (1995) — manifestly unfounded and abusive behavior by lawyers of the judicial process.
Clinton Administration Interpretation
That was not the way that the Clinton administration interpreted the term, however, when it issued 8 C.F.R. 208.20, implementing the "frivolous asylum bar" in section 208(d)(6) of the INA. Rather, that regulation provided that an asylum application could only be found to be frivolous "if any of its material elements is deliberately fabricated".
Curiously, however, that was not the Clinton administration's first interpretation when it set out to define when an asylum application could be found to be frivolous. In the proposed rule for that regulation (issued before the definition above became final), the Janet Reno-led DOJ offered the following definition: "An asylum application is frivolous if it is fabricated or is brought for an improper purpose."
The final rule (creating the current regulation) excluded the latter clause, but offered no explanation for doing so — likely because there was no reason not to include it, consistent with congressional understanding of how the immigration laws were enforced at the time that it wrote IIRIRA, and its clear intent to dissuade aliens from filing asylum claims for any improper purpose.
There is a big difference in the law between "frivolous" and "deliberately fabricated". Here's how The Law Dictionary defines "frivolous":
An answer or plea is called "frivolous" when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the plaintiff.
Clinton Administration Regulations Are at Odds with Congressional Intent
The narrow definition adopted by the Clinton administration is plainly at odds with Congress's intent in IIRIRA. First, as explained, it was not consistent with how the term "frivolous" had been applied by DOJ in the asylum context previously. As the Eleventh Circuit has noted in a different context: "Congress is assumed to act with the knowledge of existing law and interpretations when it passes new legislation." The same should have been true here.
Second, had Congress wanted to bar only aliens who lied or engaged in fraud in asylum applications, it would have said so, not used the much broader term "frivolous".
Third, applying the regulatory definition to the same term in the attorney sanctions provision (section 240(b)(6) to the INA) — again, also added at the same time as the frivolous asylum bar in IIRIRA — would render that provision impotent at best, and ridiculous at worst.
Rule 4.1 of the Model Rules of Professional Conduct for attorneys already makes clear: "A lawyer is required to be truthful when dealing with others on a client's behalf." There would have been no reason for Congress to add an additional mechanism for IJs to punish "deliberate fabricat[ion]" because those lawyers were already subject to sanctions (including suspension and disbarment) if they lied to the court with respect to a material fact. Oh, and doing so on an application is also a crime, punishable by up to 10 years in prison. Congress had to have meant "frivolous behavior" to cover something more than simple deliberate misstatements to the tribunal.
The legislative branch had to have intended "frivolous" in both contexts (section 240(b)(6) to the INA and section 208(d)(6) of the INA) to mean exactly what DOJ had already stated it meant in the aforementioned former 8 C.F.R. § 208.7: abuse — in the former context abuse of the judicial process, and in the latter abuse of the asylum application process.
The Need for Reforms to the Definition of a "Frivolous" Asylum Application
The JNPR proposes to correct this error by broadening the definition of what constitutes a "frivolous" asylum application in 8 C.F.R. §§ 208.20 and 1208.20 to cover asylum applications that: include "a fabricated essential element"; that are "premised upon false or fabricated evidence" material to the claim; that are "filed without regard to the merits of the claim"; or that are "clearly foreclosed by applicable law".
Such amendments are clearly necessary to curb abuses of the asylum system.
I have previously explained how susceptible the asylum system is to fraud, and how difficult it is to root out such fraud in that process. Even the Ninth Circuit had to admit that, with respect to immigration cases: "Fraud, forgery and fabrication are so common — and so difficult to prove — that they are routinely tolerated." It explained:
The reason for this deplorable state of affairs is not difficult to figure out. The schizophrenic way we administer our immigration laws creates an environment where lying and forgery are difficult to disprove, richly rewarded if successful and rarely punished if unsuccessful. This toxic combination creates a moral hazard to which many asylum applicants fall prey.
Under the current regulations defining frivolous asylum applications, however, finding that even a blatantly fraudulent application is frivolous is a difficult and tortuous process. As an IJ, I made numerous adverse credibility determinations (suggesting fraud), but could issue very few findings that asylum applications were frivolous such that aliens were barred permanently from immigration benefits, because of the tight restrictions on such findings in the applicable regulation.
In addition to the rampant fraud, the asylum system in the United States is being abused by aliens who lack legitimate claims in other ways — to the detriment of legitimate claims and the asylum system as a whole.
The first is by aliens who are filing non-meritorious applications simply to obtain EADs. In her 2018 Annual Report, the then-USCIS ombudsman found:
The growing backlog of affirmative asylum filings has lengthened processing times. Applications now often remain pending for well over a year, depending on the jurisdiction, before asylum seekers are even interviewed. This is long beyond the 180-day adjudication time frame specified in the statute. ... The Asylum Division surmises that this long wait has incentivized individuals to claim asylum in order to obtain work authorization. ... USCIS presumes the backlog has created an incentive to apply for asylum — without a strong case, or even fraudulently, for the purpose of obtaining an EAD while the delays continue. The agency suspects that these EAD-motivated applications have exacerbated the backlog. [Emphasis added.]
In other words, the massive affirmative asylum backlog has created a vicious circle, by which aliens who are unlawfully present in the U.S. file worthless claims for asylum to get EADs, which increases the asylum backlog, and which encourages more aliens here illegally to file non-meritorious asylum claims in order to work "legally".
The ombudsman did not limit the scope of such abuses to just aliens seeking EADs, however. Rather, she noted "another contributing factor to the asylum backlog is an increase of applicants who file for affirmative asylum seeking a path into immigration court to apply for cancellation of removal" under section 240A(b) of the INA (42B cancellation).
To be eligible for that relief, an alien who is not a lawful permanent resident (LPR) must establish that he or she has been physically present in this country for at least 10 years, has been a person of good moral character during that period, has not been convicted of specified criminal offenses, and that removal of the alien will result in "exceptional and extremely unusual hardship" to a qualifying relative who is a U.S. citizen or LPR. A grant of 42B will result in the applicant getting a green card.
USCIS does not adjudicate applications for 42B cancellation; by regulation, only IJs and the BIA have authority to do so in removal proceedings. So if an alien unlawfully present wants to apply for 42B, the alien has to get into removal proceedings, but even removable aliens have no right to be placed into removal. Therefore, aliens have to find a path to force DHS to charge them with removability to get before an IJ to apply for 42B.
One way is for an unlawfully present alien to file a non-meritorious affirmative asylum application with USCIS, and have it denied. The asylum officer (AO) will then refer the case to the immigration court, to allow the alien to renew that application defensively. The alien is not limited in those removal proceedings to simply applying for asylum, however; instead, they can seek any available relief, including 42B cancellation.
How many aliens attempt to do so? The ombudsman explained that the USCIS "Asylum Division recently performed an audit identifying up to 50,000 pending affirmative asylum applications filed by individuals who entered the United States more than ten years ago, despite the one-year filing requirement" in section 208(a)(2)(B) of the INA. That one-year filing requirement bars most aliens who fail to apply for asylum within one year of entry, absent "changed circumstances".
According to the ombudsman: "The Asylum Division suspects this group of asylum applicants filed for asylum, anticipating referral to immigration court where they could then apply for cancellation of removal, an avenue not otherwise available."
The proposed regulatory changes in the JNPR would address such cases in which aliens filed facially non-meritorious cases to obtain an EAD, the opportunity to apply for 42B cancellation, or simply to extend their unauthorized stay in the United States.
Other Reforms to the Frivolous Asylum Bar Regulations
Pursuant to those proposed amendments, aliens can withdraw their asylum applications, but with some pretty onerous restrictions. Worthless asylum applications can only be withdrawn if: the alien "wholly disclaims the application and withdraws it" permanently; is eligible to receive voluntary departure pursuant to section 240B(a) of the INA, and requests that privilege to depart in no more than 30 days; withdraws any other applications seeking relief or protection with prejudice to refiling; and waives any rights to appeal, reconsideration, or reopening.
Further, under the current regulations, only an IJ or the BIA can make a frivolous asylum determination. The JNPR would amend 8 C.F.R. § 208.30 to give AOs the ability to make that determination, as well. Under those amendments, if an AO finds that a removable alien has filed a frivolous application under the broader definition in the JNPR, the AO will refer the asylum application to an IJ for review. If the IJ or the BIA (on appeal) finds frivolousness, the alien will be permanently barred from receiving any immigration benefit.
While this may appear somewhat duplicative, it will provide the immigration courts and the BIA with a stronger record to make a frivolousness finding, while protecting the rights of aliens. And, as the JNPR notes, AOs "receive training on how to appropriately identify, raise, and address credibility and frivolousness concerns during interviews with asylum applicants." There is no reason for them not to put that training into action.
I would recommend that the final rule go further, and make the frivolousness finding by the AO final with respect to the issue. As is, under the regulations as proposed, the IJ will review that determination de novo — that is without giving any weight to the AO's conclusions. Respectfully, that is an invitation to further fraud. That said, however, the alien would still have to explain any discrepancies between the asylum claim before the AO and the claim before the IJ, regardless of the standard of review.
Moreover, the JNPR would remove the requirement in the current iteration of 8 C.F.R. § 1208.20 that an alien can only be found to have filed a frivolous asylum application where the IJ or BIA "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." That current standard is, again, an invitation to additional fraud.
In practice, an alien is going to know from the questioning by the AO at the asylum interview, or the IJ and/or the DHS attorney at the removal hearing, that there are questions about the credibility and validity of the claim, giving the applicant ample opportunity to explain discrepancies and implausible contentions without the aforementioned requirement. If that were not enough, again, the I-589 gives the alien sufficient notice.
And, as the JNPR states, "the current requirement, in essence, creates a moral hazard that encourages aliens to pursue false asylum applications because no penalty can attach until the alien is caught and given an opportunity to retract the claim." This self-evident statement more than supports the conclusion of DHS and DOJ that "there is no reason to require multiple opportunities for an alien to disavow or explain a knowingly frivolous application."
Finally, the proposed changes in the JNPR are strictly prospective, applying only to applications filed on or after the effective date of the ultimate final rule. This will place all asylum applicants on notice that attempts to game or abuse the asylum process will result in the alien's inability to ever immigrate legally. In the final rule, DHS and DOJ should direct the I-589 be amended to reflect the expanded definition of "frivolous" for purposes of asylum.
I will note that, consistent with our international obligations, even aliens who have been found to have filed frivolous applications under the revised regulations (assuming the regulations become final without material amendment) will still be able to seek statutory withholding of removal under section 241(b)(3) of the INA and protection under the Convention Against Torture. Given the nature of the changes, however, it is doubtful that many aliens found to have filed frivolous asylum applications would be eligible for those protections.
The proposed changes to the frivolous asylum regulations, like many of the changes in the JNPR, are overdue. Congress could have been more specific in IIRIRA, but it could not have been clearer about its intent. Aliens who game or abuse our generous asylum laws should lose any further opportunity to seek immigration benefits, period.
But, as noted, for some reason, the Clinton administration opted to revise its own proposed regulation implementing section 208(d)(6) of the INA to create the extremely narrow definition of "frivolousness" in the regulations today. In doing so, it promoted abuse of the system despite Congress's clear intent. Every asylum claim succeeds or fails on its own merits, but it is beyond cavil that such abuses have flooded both USCIS and the immigration courts with non-meritorious claims.
That, in turn, has delayed the granting of protection to aliens who need and deserve it. Such delays have forced those aliens to live with the uncertainty of not having permanent status in the United States, and (as importantly) impeded their ability to bring their relatives to the United States.
Many of those relatives also face dangers, either on the same grounds as their loved ones in this country, or because of their relationship to those asylum applicants. It is a regrettable fact that repressive regimes throughout history have abused family members of their opponents, especially when it cannot inflict punishment on those opponents themselves. That is as true today as it ever was.
By opening the floodgates to untold numbers of aliens to abuse the asylum laws (as the ombudsman posited), the current narrow definition of "frivolousness" has also undermined the immigration system itself. By failing to deter truly frivolous applications, this interpretation has taxed the already limited resources of USCIS (a largely fee-based agency that does not charge a fee for asylum applications, and thus must soak other applicants to pay to adjudicate such meritless applications) and the immigration courts.
The proposed changes to the regulations in the JNPR will reverse this trend, protect legitimate asylum seekers, and preserve limited adjudicatory resources. High time.