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.
E. Lea Johnston, An Administrative "Death Sentence" for Asylum Seekers: Deprivation of Due Process Under 8 U.S.C. § 158(d)(6)'s Frivolousness Standard, 82 Wash. L. Rev. 831 (2007), available at http://scholarship.law.ufl.edu/facultypub/24