(a) For applications filed on or after April 1, 1997, and before January 11, 2021, an applicant is subject to the provisions of section 208(d)(6) of the Act only if the alien received the notice required by section 208(d)(4)(A) of the Act and a final order by an immigration judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application. An application is frivolous if:
(1) Any of the material elements in the asylum application is deliberately fabricated, and the immigration judge or the Board is satisfied that the applicant, during the course of the proceedings, has had sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
(b) For applications filed on or after January 11, 2021, an asylum officer may determine that the applicant knowingly filed a frivolous asylum application and may refer the applicant to an immigration judge on that basis, so long as the applicant has received the notice required by section 208(d)(4)(A) of the Act. For any application referred to an immigration judge, an asylum officer's determination that an application is frivolous will not render an applicant permanently ineligible for immigration benefits unless an immigration judge or the Board makes a finding of frivolousness as described in paragraph 1208.20(c).
(c) For applications filed on or after January 11, 2021, an asylum application is frivolous if it:
(1) Contains a fabricated material element;
(2) Is premised upon false or fabricated evidence unless the application would have been granted without the false or fabricated evidence;
(3) Is filed without regard to the merits of the claim; or
(4) Is clearly foreclosed by applicable law.
(d) If the alien has been provided the warning required by section 208(d)(4)(A) of the Act, he or she need not be given any additional or further opportunity to account for any issues with his or her claim prior to the entry of a frivolousness finding.
(e) An asylum application may be found frivolous even if it was untimely filed.
(f) A withdrawn asylum application may also be found frivolous unless:
(1) The alien wholly disclaims the application and withdraws it with prejudice;
(2) The alien is eligible for and agrees to accept voluntary departure for a period of no more than 30 days pursuant to section 240B(a) of the Act;
(3) The alien withdraws any and all other applications for relief or protection with prejudice; and
(4) The alien waives his right to appeal and any rights to file, for any reason, a motion to reopen or reconsider.
(g) For purposes of this section, a finding that an alien knowingly filed a frivolous asylum application shall not preclude the alien from seeking withholding of removal under section 241(b)(3) of the Act or protection under the regulations issued pursuant to the Convention Against Torture's implementing legislation.
[85 FR 80389, Dec. 11, 2020]