(a) For applications filed on or after April 1, 1997, and before January 11, 2021, an applicant is subject to the provisions of section 208(d)(6) of the Act only if the alien received the notice required by section 208(d)(4)(A) of the Act and a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application. An application is frivolous if:
(1) Any of the material elements in the asylum application is deliberately fabricated, and the immigration judge or the Board 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.
(2) Paragraphs (b) through (f) shall only apply to applications filed on or after January 11, 2021.
(b) For applications filed on or after January 11, 2021, an asylum officer may determine that the applicant knowingly filed a frivolous asylum application and may refer the applicant to an immigration judge on that basis, so long as the applicant has received the notice required by section 208(d)(4)(A) of the Act. For applications referred to an immigration judge, an asylum officer's determination that an application is frivolous will not render an applicant permanently ineligible for immigration benefits unless an immigration judge or the Board makes a finding of frivolousness as described in paragraph (c) of this section.
(c) For applications filed on or after January 11, 2021, an asylum application is frivolous if it:
(1) Contains a fabricated material element;
(2) Is premised upon false or fabricated evidence unless the application would have been granted without the false or fabricated evidence;
(3) Is filed without regard to the merits of the claim; or
(4) Is clearly foreclosed by applicable law.
(d) If the alien has been provided the warning required by section 208(d)(4)(A) of the Act, he or she need not be given any additional or further opportunity to account for any issues with his or her claim prior to the entry of a frivolousness finding.
(e) An asylum application may be found frivolous even if it was untimely filed.
(f) A withdrawn asylum application may be found frivolous unless:
(1) The alien wholly disclaims the application and withdraws it with prejudice;
(2) The alien is eligible for and agrees to accept voluntary departure for a period of no more than 30 days pursuant to section 240B(a) of the Act;
(3) The alien withdraws any and all other applications for relief or protection with prejudice; and
(4) The alien waives his right to appeal and any rights to file, for any reason, a motion to reopen or reconsider.
(g) For purposes of this section, a finding that an alien filed a knowingly frivolous asylum application shall not preclude the alien from seeking withholding of removal under section 241(b)(3) of the Act or protection under the regulations issued pursuant to the Convention Against Torture's implementing legislation.
[85 FR 80398, Dec. 11, 2020]
Notes of Decisions
Cited in
166
cases (
22 in the last 5 years), 2004–2026 · leading case:
Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023).
Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023).
· cites it 5× “§ 1158 (d)(6); 8 C.F.R. § 1208.20 (2008), and, alternatively, denied them adjustment of status as a matter of discretion, see 8 U.”
Y-l, 24 I. & N. Dec. 151 (BIA 2007).
· cites it 5× “8 C.F.R. § 1208.20 (2006). In preparing this regulation, the Attorney General stated that the Department of Justice was “carrying out one of the central principles of the asylum reform process begun in 1993; to discourage applicants from making patently false claims.”
Wisam Yousif v. Loretta E. Lynch, 796 F.3d 622 (6th Cir. 2015).
· cites it 9× “” 8 C.F.R. § 1208.20 . Specifically, the IJ found that Yousif had falsely claimed in his application that he had experienced past incidents of persecution.”
Xiao Min Chen v. Mukasey, 527 F.3d 935 (9th Cir. 2008).
· cites it 10× “" 8 C.F.R. § 1208.20 . An application is frivolous "if any of its *940 material elements is deliberately fabricated.”
Yan Liu v. Holder, 640 F.3d 918 (9th Cir. 2011).
· cites it 5× “” 8 C.F.R. § 1208.20 . If found to have “knowingly made a frivolous application for asylum,” an applicant will be “permanently ineligible for any benefits under [the Immigration and Nationality Act],” including asylum relief.”
Mei Juan Zheng v. Holder, 672 F.3d 178 (2d Cir. 2012).
· cites it 7× “After Zheng finished testifying, the IJ asked her lawyer to explain whether he “should or should not make a frivolousness finding” and stated that he was “not sure” whether 8 C.F.R. § 1208.20 “allows discretion.” Id.”
Putu Indrawati v. U.S. Attorney Gen., 779 F.3d 1284 (11th Cir. 2015).
· cites it 3× “§ 1158 (d)(6), except withholding of removal, 8 C.F.R. § 1208.20 . An asylum application is frivolous "if any of its material elements is deliberately fabricated.”
Ceraj v. Mukasey, 511 F.3d 583 (6th Cir. 2007).
· cites it 3× “” 8 C.F.R. § 1208.20 . A finding of frivolousness requires: (1) notice to the alien of the consequences of filing a frivolous application, (2) a specific finding by the IJ or the BIA that the alien knowingly filed a frivolous application, (3) sufficient evidence in the record to…”
Almaghzar v. Gonzales, 457 F.3d 915 (9th Cir. 2006).
· cites it 2× “” 8 C.F.R. § 1208.20 . The regulations require that a finding of frivolousness “only be made if the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or…”
Biao Yang v. Gonzales, 496 F.3d 268 (2d Cir. 2007).
“(citing § 208(d)(6); 8 C.F.R. § 1208.20 ). 3 The second provision requires that “the Immigration Judge separately address and include specific findings that the respondent deliberately fabricated material elements óf his asylum claim.”
Ghazali v. Holder, 585 F.3d 289 (6th Cir. 2009).
· cites it 4× “See 8 C.F.R. § 1208.20 . Before making the frivolousness finding, the immigration judge orally warned Ghazali about the consequences of making a frivolous asylum application.”
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