Wednesday, September 19, 2007

Luciana: Asylum Not Frivolous If Fabrication Legally Irrelevant

In Luciana v. Gonzales, No. 05-3544 (3d Cir. Sept. 17, 2007), the Third Circuit made a sensible ruling that the harsh penalty for filing a frivolous asylum application should only apply if the fabricated information would have been legally relevant. It therefore overturned the incorrect rulings by the BIA and Immigration Judge Charles M. Honeyman.

Frivolous is a specific term with extremely harsh penalties, which the Third Circuit noted is almost something like a death penalty in terms of the ability to file future immigration applications. It is therefore only applies in narrow circumstances -- if the person deliberately fabricates the material elements of an asylum claim. But elements cannot be considered material if the details would not have succeeded as an asylum claim even if taken as true.

For example, in this case, the asylum claim was filed more than one year after the person entered the United States. By law, no matter what details it contained, it could not succeed. Therefore, details about what the person suffered were not material -- no matter what, the late-filed asylum claim could not succeed.


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