C.F.R. » Title 8 » CHAPTER I—DEPARTMENT OF HOMELAND SECURITY › SUBCHAPTER B—IMMIGRATION REGULATIONS › PART 208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL › Subpart A—Asylum and Withholding of Removal

8 C.F.R. § 208.20

Determining if an asylum application is frivolous

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(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) of this section 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 any application 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 1208.20(c).

(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 also 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 knowingly filed a 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 80389, Dec. 11, 2020]
Notes of Decisions
Cited in 103 cases (6 in the last 5 years), 1997–2026 · leading case: Jamal Ali Farah v. John Ashcroft, Attorney Gen., 348 F.3d 1153 (9th Cir. 2003).
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Jamal Ali Farah v. John Ashcroft, Attorney Gen., 348 F.3d 1153 (9th Cir. 2003). · cites it 3× “8 C.F.R. § 208.20 . Our research discloses no case in which we have upheld such a bar, and we agree with petitioner that the IJ’s finding was infirm for failure to follow the requirements of that regulation.”
Germar Scheerer v. United States Attorney Gen., 445 F.3d 1311 (11th Cir. 2006). · cites it 7× “Under 8 C.F.R. § 208.20 : [A]n asylum application is frivolous if any of its material elements is deliberately fabricated.”
Biao Yang v. Gonzales, 496 F.3d 268 (2d Cir. 2007). · cites it 3× “8 C.F.R. § 208.20 . In Yuanliang Liu v. U.”
Khadka v. Holder, 618 F.3d 996 (9th Cir. 2010). · cites it 6× “8 C.F.R. § 208.20 ; see also In re Y-L, 24 I.”
Yuanliang Liu v. U.S. Dep't of Just., Attorney Gen. Alberto Gonzales, 455 F.3d 106 (2d Cir. 2006). · cites it 5× “8 C.F.R. § 208.20 ; see Scheerer v. U.S. Att’y Gen.”
Luciana v. Attorney Gen. of the United States, 502 F.3d 273 (3rd Cir. 2007). · cites it 6× “2 In addition, because of the fabrication of the December 1999 incident, the IJ found that Luciana “knowingly filed- an asylum application which is frivolous in part, thereby triggering the lifetime bar to benefits pursuant to Section 208(d)(6) and 8 C.F.R. § 208.20 et seq.”…”
Mei Juan Zheng v. Mukasey, 514 F.3d 176 (2d Cir. 2008). · cites it 5× “8 C.F.R. § 208.20 ; cf. In re Y-L, 24 I. & N.”
Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023). “4 In Luciana, the Third Circuit was construing 8 C.F.R. § 208.20 , rather than 8 C.F.R. § 1208.”
Ahir v. Mukasey, 527 F.3d 912 (9th Cir. 2008). “See 8 C.F.R. § 208.20 . In particular, the Board or IJ must make a specific finding that an alien deliberately fabricated a material element of the application.”
Abou Cham v. Attorney Gen. of the United States, 445 F.3d 683 (3rd Cir. 2006). “We also observe that an adverse credibility determination does not automatically and sufficiently support a finding of frivolousness, for 8 C.F.R. § 208.20 requires more — "a finding of deliberate fabrication of a 'material element' of an application, plus an opportunity for the…”
Hanna Aziz, Also Known as Zahra Mohammed Almosawai v. Alberto Gonzales, Attorney Gen. of the United States, 478 F.3d 854 (8th Cir. 2007). · cites it 2× “Although the INA does not define “frivolous,” regulations promulgated under the Act describe a frivolous application as one in which the IJ, after first being satisfied that the applicant had been provided with an opportunity to account for discrepancies and implausible aspects…”
Peter Udo v. Merrick Garland, 32 F.4th 1198 (9th Cir. 2022). “8 C.F.R. § 208.20 ; see also Inre Y-L-, 241.”
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