Settlement Proves DOJ/DHS Need to Crackdown on 'Frivolous' Asylum Applications

Thanks to 'loophole', 'frivolity' is not always funny

By Andrew R. Arthur on July 20, 2020

In a July 7 post, I reported that DOJ and DHS have proposed to amend the regulations barring aliens who have filed "frivolous" asylum applications from future immigration benefits, in order to clear the way for valid asylum applications to be granted more quickly. A July 1 settlement reached by DOJ with a private immigration lawyer suggests that this proposal is overdue, and needs to be implemented now.

By way of brief background, section 208(d)(6) of the Immigration and Nationality Act (INA) provides that if the attorney general or DHS secretary finds that an alien has knowingly filed a "frivolous" asylum application, the alien will be permanently barred from receiving any immigration benefits, period.

The reason Congress did so was simple: to prevent aliens from submitting worthless asylum applications simply to get work authorization, or to remain in the United States indefinitely while those applications wend their way through the labyrinthine adjudication process. Another, less obvious, reason was to prevent aliens from filing applications they knew would be denied in order to get before an immigration judge (IJ) to apply for other relief, as I will explain below.

Despite this, the Clinton administration ultimately interpreted the term "frivolous" extremely narrowly when it implemented the "frivolous asylum bar" in 8 C.F.R. § 208.20. Specifically, the regulation states that an asylum application could only be found to be frivolous "if any of its material elements is deliberately fabricated."

In the July 7 post, I explained that this is not how the term "frivolous" is generally defined in the law. Even a layman would recognize this definition as "fraud" — not "frivolity". The original regulation proposed by the Clinton INS would have been more commonsensical and truer to congressional intent: "An asylum application is frivolous if it is fabricated or is brought for an improper purpose." (Emphasis added.) They ended up dropping that last clause, with no explanation why.

So, for the last (almost) two decades, aliens have been free to exploit the asylum system, filing worthless applications with no sanctions so long as they did not "fabricate" any of the "material elements" therein — that is, lie. In fact, you don't have to assert any facts at all — your application will not be considered "frivolous" because facts that are not stated cannot be "materially fabricated".

DHS and DOJ propose to amend this regulation to make clear that asylum applications that are "filed without regard to the merits of the claim" are "frivolous" for purposes of the INA, and subject to the sanctions therein.

Which brings me to the July 1 settlement, between DOJ and Phoenix attorney Jose A. Bracamonte. That settlement was announced on Tuesday, July 14, by the Executive Office for Immigration Review (EOIR), the DOJ component with jurisdiction over the immigration courts and the Board of Immigration Appeals (BIA).

DHS and EOIR had alleged that Bracamonte filed affirmative asylum applications with U.S. Citizenship and Immigration Services (USCIS) "for the sole purpose of causing DHS to issue Notices to Appear (NTAs) to his clients" — that is, to get into removal proceedings — "without any intention to pursue asylum or related forms of relief." As EOIR reported, "Bracamonte acknowledged that his conduct was an abuse of the asylum system."

It might be counterintuitive that a lawyer would want to bring an alien client to the attention of DHS and have that client placed into removal proceedings to not apply for asylum, but I explained why counsel would do so in my July 7 post.

Specifically, an alien illegally present, with a qualifying relative, can obtain a green card if an IJ or the BIA grants that alien cancellation of removal under section 240A(b) of the INA (known as "42B cancellation"). The alien has to show that his or her removal would result in "exceptional and extremely unusual hardship" to that qualifying relative (a U.S. citizen or lawful permanent alien) — among other factors for that relief — but again, if the 42B applicant is successful, a green card will follow.

And even applying for 42B allows the applicant to seek employment authorization. It can take years to resolve those cases (42B is capped at 4,000 grants per year), time that the alien can use to live and work in the United States.

But to apply for 42B and seek employment authorization, the alien has to get before an IJ — USCIS cannot grant it — and a removable alien has no right to be placed into removal proceedings to seek that relief. Filing a worthless asylum application with USCIS is an avenue to immigration court to apply for 42B.

As I explained in that earlier post, the USCIS ombudsman in 2016 suggested that up to 50,000 aliens were using this loophole to get before an IJ to apply for 42B.

Neither the settlement nor the EOIR press release state that Bracamonte was exploiting this loophole, but there really is no other logical reason for his actions.

The 2020 Annual Report from the USCIS ombudsman reveals there are more than 350,000 affirmative asylum applications pending before USCIS (up from 15,526 in 2012). That is on top of the 476,000 defensive asylum cases that were pending with the immigration courts as of October 11, 2019 (there are likely now many, many more). This means that there are potentially tens of thousands of valid asylum claims awaiting adjudication.

Those aliens deserve protection — for themselves and their families — and the right to get on with their lives in the United States. But to get to those cases, USCIS and EOIR need to sift through the non-meritorious cases.

Many of the aliens in that latter category of cases likely have an actual fear — they are just not eligible for relief under the tight asylum standards set by Congress. Some, however, have no claim at all — they are simply abusing our nation's generosity to extend their illegal stay in the United States — and some are exploiting the asylum/42B loophole for similar reasons.

DHS and DOJ want to close that loophole. Now, they have even more proof they should.