If I submit a weak asylum case, do I risk it being found “frivolous?”

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Question:

I’m about to finish up my Form I-589 to apply for asylum in the U.S., but I see on the form a warning that applicants who “knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and Nationality Act.” I don’t think my asylum case has a big chance of being granted. My brother was the politically active one, and he was threatened, not me. But I know other families in my country where people were persecuted for the actions of their family members. How worried should I be that my application will be found “frivolous?”

Answer:

By what you’ve described, this warning should not be a concern in your case. To qualify as “knowingly frivolous,” one or more material (important and relevant) elements of your asylum application and testimony would have to constitute deliberate fabrications, otherwise known as lies or falsehoods. This comes from the regulations published by U.S. Citizenship and Immigration Services (USCIS) at 8 C.F.R. § 1208.20.

The bar on frivolous applications no doubt reflects the fact that the asylum system has a history of abuse by applicants who turned in applications with made-up stories, in some cases written by someone else, in hopes of gaining status in the United States. It is not meant to deter or frighten away people who truly fear returning to their home country.

A finding that your application is frivolous would not be made by the first officials to hear your case, namely the USCIS asylum officers. Only if these officers deny your case and refer it to the Immigration Court is a frivolous finding possible, made by the Immigration Judge or IJ who hears your testimony.

What’s more, the IJ is supposed to give you a chance to explain yourself if you are caught in any apparent lies. The regulations state that the IJ or appeals board can only find that the claim is frivolous if 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.”

It sounds like a greater concern in your case is that it might not impress the asylum examiners sufficiently to grant it. This is where evidence of conditions in your home country will be very important. The more documentation you can present from experts showing that other family members of politically active persons, in situations similar to yours, legitimately feared persecution, the stronger your case will appear.

For help with the application process, be sure to hire an experienced immigration attorney is at all possible. If you can’t afford it, look for pro bono (free) help from nonprofit or other lawyers’ associations. For more information about asylum, see the "Asylum & Refugee Status" page of Nolo's website.

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