Is this frivolous asylum claim?

**ktmnep** · 01-03-2012, 11:38 AM

court believe that the respondent has simply failed to file with in a reasonable period of the time and the court, there fore believe that he is statutorily ineligible for asylum. Even the respondent was eligible for asylum however court does not believe that he has made a case for it. this is what the judge said about my asylum. i was just wondering if court does not believe it and denied it, is it frivolous asylum claim? I just wanna know this beacause does this count like a big negative factor in waiver. What you guys think about it. any suggestion is appreciated.

**momof1** · 01-03-2012, 04:34 PM

Originally Posted by ktmnep

court believe that the respondent has simply failed to file with in a reasonable period of the time and the court, there fore believe that he is statutorily ineligible for asylum. Even the respondent was eligible for asylum however court does not believe that he has made a case for it. this is what the judge said about my asylum. i was just wondering if court does not believe it and denied it, is it frivolous asylum claim? I just wanna know this beacause does this count like a big negative factor in waiver. What you guys think about it. any suggestion is appreciated.

NO, the judge has to actually use the word frivolous in their decision. It just means that you have not met the standard to have asylum approved. It does not mean you filed a frivolous case. A denied asylum claim is a negative factor in the waiver approval according to some lawyers specializing in waivers. In our case, even though my husband was ruled as not being credible for his asylum, the waiver was approved. See, even the words not credible do not rise to frivolous.

Best of luck to you

**JMRJ** · 01-03-2012, 04:39 PM

No. You should have known if the finding of frivolous claims has been made. You should have received a notice of the consequences of filing a frivolous claim; the IJ should have made a specific finding that you knowingly made a frivolous application; there should have been a sufficient evidence that you fabricated a material fact; you should have been given the opportunity to explain each discrepancy and inplausibility that form the basis of a frivolous finding; you should have been told you were found to have violated the Section 208(d)(6) of the INA or 8 C.F.R. 1208.20.

---------- Post added at 10:39 AM ---------- Previous post was at 10:39 AM ----------

ooops, sorry. Typing while momof1 is posting.

**Imp** · 01-03-2012, 04:47 PM

Ditto.

If the judge did not specifically find your claim to be frivolous, it was not.

But let me just add that filing a frivolous asylum claim bars you from most immigration relief in the future, but a denied asylum claim that is not frivolous, can still be a negative factor in your waiver case. We have seen some consulates take this approach more than others- from what I have seen personally, it has seemed to be a negative factor for persons applying from Eastern Europe, but less of an issue for people applying through consulates in the Americas. Not an impossible obstacle to overcome, but depending on where you are filing through, this may have an impact.

Good luck.

**Guedez** · 02-08-2012, 11:14 PM

We just overcame an untimely denied asylum in our waiver which led to my husband being deported (we overcame that too!). My suggestion: Hold onto your decisions and be prepared in your HSL to at least touch on WHY it was filed untimely. My husband filed before we met, used every motion he could and I included the IJ decisions where the untimely filing was pointed out and other case errors. It can be done.