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Question: Many people from around the world are being persecuted, tortured, imprisoned or killed in their home countries. However, sometimes they do not win. I heard that they may not be allowed to ever get immigration benefits again. Is this true?

Answer: They flee this persecution and apply for asylum in the United States. As a side benefit of applying for asylum, people can get work-permits which sometimes are more important for these people than the actual asylum. In the past, applying for asylum would be abused by thousands of people for this very purpose.

Thus, in 1996, Congress enacted a law which essentially stated that if someone files a frivolous asylum application, they would be permanently barred from ever applying for any immigration benefit for the rest of their lives. This bar would apply if the Immigration Judge made a ruling that the asylum application was frivolous or meritless.

In a recent 9th Circuit decision, Jamal vs. Ashcroft, 2003 U.S. App. LEXIS 23239 (9th Cir. 2003), the alien first challenged the Immigration Judge’s credibility determination underlying his removal order. The Immigration Judge had made a specific ruling that the alien was not credible. The Immigration Judge identified specific inconsistencies in the alien’s testimony, his expert’s testimony, his brother’s testimony, and between the different witnesses’ testimony. Further, the Immigration Judge ruled that the inconsistencies went to the heart of the asylum application and the alien’s identity, his membership in a persecuted group, and the date he entered the United States.

The Immigration Judge then ruled that the alien knowingly filed a frivolous asylum application and ordered that the alien be removed from the United States. Thus, because of this ruling the alien was barred for life from ever coming back to the United States. The alien appealed both the removal order and the order that the asylum application was frivolous.

Such a finding carries the severe penalty of a permanent bar to immigration relief. Immigration regulations require there to be sufficient opportunity to account for discrepancies or implausibilities.

The Immigration Judge reviewed with Farah the consequences of filing a frivolous asylum application. However, Farah wanted to continue with the application. In the end, the Immigration Judge found that Farah had knowingly filed a frivolous asylum application, but never allowed Farah to explain any of the inconsistencies the Immigration Judge relied upon in making that decision.

The primary issue to be answered is whether the Immigration Judge ruled correctly on whether there was a knowingly frivolous asylum application filed. This issue is of critical importance as it bears on whether persons who might have a colorable asylum claim will step forward and apply. If they feel that they will be adjudged to have filed a knowingly frivolous asylum application, a chilling effect for asylum seekers will occur. They will be afraid to file these applications. Instead of the United States attempting to adjudicate an asylum claims, the United States will be sending out a message to try to exclude valid claims.

The Immigration Judge concluded that Farah’s asylum application was so inconsistent that it rose to the level of being knowingly frivolous under the immigration laws.

In this case, the Immigration Judge found two specific examples of fabrication that were relevant to his decision: the petitioner’s entry date and his travel history. In his decision, the IJ held that it was clear that the respondent did not enter in New York on January 24, 1999, in the manner in which he stated and that he has fabricated that portion of his claim. The Immigration Judge further stated that he has also been untruthful as to whether he was in Nairobi, Kakuma, London, England or any other place before he came to the United States.

This court stated that Farah had ample opportunities to explain the discrepancies that led to the adverse credibility finding. For example, discrepancies in his father’s name and in his clan identity. To support the finding of frivolousness, however, the Immigration Judge relied with particularity on different discrepancies between what Farah said and the extrinsic evidence. Farah was not given an adequate opportunity to address those additional discrepancies before the ruling on frivolousness was made. In sum, the evidence presented did not allow a proper opportunity for Farah to explain all discrepancies in the record. Therefore, the court overturned the decision of the Immigration Judge that the application was knowingly frivolous.

Even though the Court did not reverse the decision denying the asylum, they did reverse the permanent bar to future filings with immigration. Now, aliens with colorable asylum claims will not be afraid to present those claims to the United States.

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Being exiled from the U.S.