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No Cancellation if Asylum Filing Was Frivolous Says BIA

May 31, 2019

No Cancellation if Asylum Filing Was Frivolous Says BIA

Author: Deportation Lawyer Alena Shautsova

There exists a wrong practice among Immigration law practitioners (fraudsters) to file an asylum claim on behalf of an individual with the purpose of filing for cancellation of removal later in Immigration court. What happens is that people essentially get “tricked” by these practitioners into believing that they can get away with filing a frivolous asylum case and later, when they transferred to court, they will be able to successfully file for a relief with the judge in a different form. At times, people are not even aware they filed for asylum!

Here is a first point: a person has to file for asylum within a year of his/her entry into the US. If you spent here 10 years and more (one of the qualifications for cancellation of removal), chances are you will NOT qualify for asylum unless certain, very narrow exceptions are met.

Second, an asylum application must have merit: you cannot allege that you are afraid of criminal situation in your country general. This is NOT a basis for asylum. It takes months to prepare an asylum application and thoroughly collect all the evidence; if the evidence is not available you must explain why. 

There is a punishment under the law for those who submit  frivolous or fraudulent asylum applications. 

So, within the past years, there were numerous reports of filing for asylum in order to get a cancellation of removal relief: an application for a green card available to be filed in court only. Now, the BIA held that this practice will be sufficiently abolished: if the Immigration judge determines that the asylum application was filed just so that the person could file for cancellation of removal, the proceedings will be DISMISSED! It means that the person will not have a chance to file for cancellation of removal.  See Matter of ANDRADE JASO and CARBAJAL AYALA, 27 I&N Dec. 557 (BIA 2019). 

If one desires to place himself/herself in removal proceedings, even generally not recommended to do so, he/she should request that the government issue a Notice to Appear rather than submit a frivolous asylum case. This approach might come with less success, but will save time, money, and potentially safeguard from civil and criminal penalties.