• Employers
    • Permanent Visas
      • PERM Labor Certifications
    • Temporary Visas
      • E-3 Visas
      • H-1B Employment
        • H-1B1 Visa
      • L-1 Visas
      • J-1 Visas
      • O-1 Visas
      • TN, Canadian/Mexican
  • Employees
    • Nonimmigrant Visa Applications (Consular)
    • National Interest Waivers
  • Entrepreneurs
    • E-1 & E-2 Visas
  • Compliance
    • I-9/Worksite Enforcement
  • Family & Individuals
    • Marriage
    • Deportation, Removal & Asylum
    • Hearings & Appeals
    • Naturalization
    • Students
      • STEM OPT Visas
  • About Us
    • Blog
    • Testimonials
    • Attorneys
      • Philip M. Levin, Founder
      • Don L. Pangilinan, Principal
      • Alec P. Wilczynski, Of Counsel
      • Alexandra Cotroneo, Associate

Levin and Pangilinan PC

U.S. Immigration and Nationality Law

¿Necesitas el sitio web en español?

800.974.2691
Contact Us
  • Employers
    • Permanent Visas
      • PERM Labor Certifications
    • Temporary Visas
      • E-3 Visas
      • H-1B Employment
        • H-1B1 Visa
      • L-1 Visas
      • J-1 Visas
      • O-1 Visas
      • TN, Canadian/Mexican
  • Employees
    • Nonimmigrant Visa Applications (Consular)
    • National Interest Waivers
  • Entrepreneurs
    • E-1 & E-2 Visas
  • Compliance
    • I-9/Worksite Enforcement
  • Family & Individuals
    • Marriage
    • Deportation, Removal & Asylum
    • Hearings & Appeals
    • Naturalization
    • Students
      • STEM OPT Visas
  • About Us
    • Blog
    • Testimonials
    • Attorneys
      • Philip M. Levin, Founder
      • Don L. Pangilinan, Principal
      • Alec P. Wilczynski, Of Counsel
      • Alexandra Cotroneo, Associate

Filing a Frivolous Asylum Claim

March 4, 2021 Philip Levin

BIA Holds That, Absent A Showing Of Prejudice On Account Of Ineffective Assistance Of Counsel, Or A Showing That Clearly Undermines The Validity And Finality Of The Finding, It Is Inappropriate For The Board To Favorably Exercise Its Discretion To Reopen A Case And Vacate An Immigration Judge’s Frivolousness Finding.

On November 13, 2020, the Board of Immigration Appeals (BIA or Board) denied a Respondent’s 2nd motion to reopen, effectively denying her applications for asylum and related relief and ordering her removed. In proceedings before the Immigration Judge (IJ), Respondent had applied for relief but the IJ found her testimony was not credible, determining that “critical elements” of her asylum claim were deliberately fabricated, as required for a frivolous finding under 8 C.F.R. §1208.20. Respondent’s first attorney timely appealed, alleging the frivolousness finding to be error. Her second lawyer prepared and filed the appellate brief, which failed to mention the frivolous application findings; that appeal was dismissed by the BIA, which affirmed the IJ’s conclusions that Respondent lacked credibility and had filed a frivolous asylum claim. A third attorney filed a petition for a review of the Board’s decision with the Third Circuit Court of Appeals, which ultimately upheld the BIA but, while the petition was pending, the same lawyer filed a motion to reconsider and reopen with the Board based on the mistranslation of a foreign document entered into the record by the IJ; the BIA denied the motion, a decision that was not appealed. A fourth lawyer then filed a 2nd motion to reopen 14 years later, seeking to overcome the statutory bar of the frivolous finding of INA §208(d)(6), as Respondent also sought to reopen based on the fact that her husband had filed a petition to accord her derivative U visa status.

The Board began its analysis by reciting 3 rules: 1) The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision; 2) to sustain one’s burden on reopening, the movant must establish that the ultimate relief would be merited as a matter of discretion, and 3) motions to reopen are disfavored and strict limits are enforced in removal proceedings “where every delay works to the advantage” of one in the U.S. unlawfully who wishes to remain.

The decision next noted that Respondent’s attempt to overcome the statutory bar of §208(d)(6) was based on the contention that the IJ “habitually made erroneous frivolous findings in asylum cases like hers,” an impediment she could not overcome on appeal “due to her second attorney’s ineffective assistance of counsel in the preparation and filing of her appellate brief.” And, while a claim of ineffective assistance may properly constitute grounds for reopening, where the motion is untimely, ineffective assistance can only serve as the basis for a motion to reopen “if it is substantiated and accompanied by a showing of due diligence.” Additionally, found the BIA, its own sua sponte authority to reopen or reconsider is “limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations.”

Further, reminded the opinion, a finding that an asylum application is frivolous forever bars the applicant from any benefit under §208(d)(6), essentially a “death sentence” for an asylum-seeker’s hopes of “securing permanent, lawful residence in the United States.” This is consistent with the motion to reopen regulation [8 C.F.R. §1003.23(b)(4)(i)], which states that if an asylum application was denied due to a frivolous finding, the applicant is ineligible to file for reopening or reconsideration. Because Respondent’s frivolousness finding had been upheld by both the Board and the Third Circuit, held the BIA, it is final and §208(d)(6) renders her ineligible for relief. The decision then concluded that absent a showing of prejudice on account of ineffective assistance or one that “clearly undermines the validity and finality of the finding,” it is inappropriate for the Board to favorably exercise its discretion to reopen a case and vacate the IJ’s frivolous finding; otherwise, cases could be reopened for the sole protection of avoiding the statutory bar.

Applying §208(d)(6) here, the BIA concluded that the IJ’s finding became final when the Board dismissed Respondent’s appeal; she had constructive and actual notice at that point that she would be “statutorily barred from receiving any immigration benefit at the time her husband filed” a derivative U visa petition for her nine years later. She, therefore, failed to show prima facie eligibility for U status.

Nor did Respondent’s motion demonstrate an exceptional situation warranting the exercise of the Board’s discretionary authority to reopen proceedings; here, she sought to reopen based on equities acquired “while she remained illegally in the United States after being ordered removed.” The decision stated that equities established in this way “generally do not constitute such truly exceptional circumstances as to warrant discretionary reopening.” Further, the BIA did not consider Respondent’s claim of ineffective assistance to be a valid basis for reopening proceedings and vacating the frivolousness finding. The Board was not persuaded, per this record, that the filing deadline should be equitably tolled because Respondent had been prejudiced by her attorney’s ineffective assistance in filing the appellate brief. In fact, the decision found, there is no reasonable likelihood the outcome of these proceedings would have been different if counsel had challenged the frivolous finding in his brief.

Lastly, stated the opinion, Respondent had never explained “why she apparently made no inquiries regarding the frivolousness finding or took any steps to contest it” for 14 years, demonstrating a lack of due diligence. As her 1st motion to reopen gave Respondent a “fair opportunity to allege any impropriety in regard to her application for asylum,” the Board was unpersuaded that the time and number bars should now be equitably tolled on the basis of a claim of ineffective assistance. The motion to reopen was thus denied. Matter of H-Y-Z-, 28 I&N Dec. 156 (BIA 2020).

Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. 

You have questions. We have answers.

Filed Under: Adjustment Of Status, BIA, Blog, immigration

Contact Us

Recent Blog Posts

  • U.S. Visa Interview Waiver Program: Important 2025 Updates
  • New DOS Guidance on Mandating Social Media Review of all F-1, M-1, and J-1 visa applicants and Possible Revocations: What You Need to Know
  • H-1B LOTTERY FY 2026 AND THE RECENT MODERNIZATION RULE 
  • Birthright Citizenship Under Fire: Trump’s Latest Executive Order Explained
  • BIA Holds That Its Prior Holding In Matter Of Fernandes, 28 I&N Dec. 605 (BIA 2022), That An Objection To A Noncompliant Notice To Appear Will Generally Be Considered Timely If Raised Prior To The Close Of Pleadings Is Not A Change In Law, And Thus Matter Of Fernandes Applies Retroactively.

Practice Areas

  • Business Immigration
  • Family Immigration
  • Marriage
  • PERM Labor Certification
  • Hearing & Appeals
  • Deportation, Removal, Asylum
  • I-9/Worksite Enforcement

LEAVE A REVIEW

Leave a Review on Google

        

San Francisco Office
930 Montgomery Street
Suite 502
San Francisco, CA 94133

Silicon Valley Office
5201 Great America Parkway
Suite 320
Santa Clara, CA 95054
Los Angeles Office
445 S. Figueroa Street
Suites 2600 & 2700
Los Angeles, CA 90071
©2025 Levin and Pangilinan PC. All Rights Reserved.
  • Business Immigration
  • Family Immigration
  • Labor Certification
  • I-9/Worksite Enforcement
  • Hearings & Appeals
  • Disclaimer
  • Privacy Policy

Copyright © 2025 · XML Sitemap · Sitemap

R-1
TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.