An Administrative "Death Sentence" for Asylum Seekers: Deprivation of Due Process Under 8 U.S.C. § 1158(d)(6)'s Frivolousness Standard

Abstract: In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This Article argues that the Due Process Clause guarantees that the government must prove that a noncitizen knowingly filed a frivolous asylum application by clear and convincing evidence before rendering him permanently ineligible for benefits. It also proposes that immigration judges should consider only certain categories of evidence when determining whether the government has established elements of the statute by clear and convincing evidence, while other categories should be held ineligible as a matter of law. INTRODUCTION In 1996, prompted by national security and economic concerns perceived to be associated with illegal immigration,1 Congress enacted a draconian2 new sanction for any noncitizen found to have knowingly filed a frivolous application for asylum. Congress amended section 208 of the Immigration and Nationality Act to provide that, if such an application is filed, the noncitizen "shall be permanently ineligible for any benefits" under United States immigration laws.3 This sanction applies regardless of any future developments in the asylum applicant's home country or personal life that would otherwise provide a basis for granting immigration benefits.4 For example, if the noncitizen returns to his home country, leads a political movement, and fears persecution by the ruling class, he will not be eligible to seek refuge here.5 Similarly, if, in waiting for the immigration process to run its course, an asylum seeker has married a United States citizen or given birth to children who are United States citizens, an asylum seeker's family ties are of no accord; she is no longer eligible for adjustment of status.6 The sanction is so sweeping in its scope and implications that it fully deserves its characterization by the courts as an administrative "death sentence" for asylum seekers.7 While the government has legitimate interests in rejecting and deterring frivolous asylum applications, any governmental action must comply with constitutional standards.8 The frivolousness statutory provision-codified at 8 U.S.C. § 1158(d)(6)-is constitutionally deficient as written and applied. Congress failed to specify which party bears the burden of proof and what degree of certainty is required to support a finding of frivolousness.9 The Board of Immigration Appeals, charged with the responsibility of administering and interpreting immigration statutes,10 waited eleven years to fill these statutory gaps. When it did act in April 2007, the Board-failing to acknowledge the constitutional implications of its decision-established that the government must prove that a noncitizen knowingly filed a frivolous asylum application by a preponderance of the evidence," a burden of proof inconsistent with due process requirements.12 The federal courts have yet to remedy this error. Because the federal government has failed to establish evidentiary standards that comport with due process, application of this statutory provision constitutes a violation of an asylum seeker's constitutional rights. The deprivation of rights is amplified by the permanent and severe nature of the sanction, which may lead to the direst of consequences. In the current political climate-amid post-9/11 national security concerns13 and fears of illegal immigrants displacing American jobs14-deterring and punishing noncitizens who attempt to enter our country through fraudulent means has become a matter of national importance15 and a priority of immigration judges evaluating asylum applications. …