DHS memo directs ICE to ramp up asylum-related fraud cases

Washington — The Department of Homeland Security's top lawyer on Tuesday directed Immigration and Customs Enforcement attorneys to aggressively pursue administrative fraud cases against immigration lawyers accused of filing false asylum claims, the latest step in the administration's push to speed up removals, expand enforcement and challenge the legal infrastructure around immigration.

In a memo dated May 26 and obtained by CBS News, DHS General Counsel James Percival instructed ICE attorneys within the Office of the Principal Legal Advisor to develop "anti-fraud policies" designed for "robust enforcement" of existing federal anti-fraud law. The memo said that any effort "should include enforcement against immigration attorneys filing false asylum claims in immigration court."

While the directive does not create new penalties, it signals that ICE lawyers will begin to use existing administrative enforcement tools more frequently to crack down not only against migrants accused of submitting fraudulent applications, but also against the lawyers who represent them. 

"For many years, millions of illegal aliens have committed fraud on our immigration system," Percival wrote, without citing specifics. "In no place is this more rampant than in immigration court."

The sweeping directive asserted that asylum claims are meant for "unique and narrow circumstances," but that it has become "standard practice" for immigration lawyers to argue that "virtually every illegal alien" faces persecution or torture in their home country because of a protected characteristic such as race or political opinion.

The right to seek asylum in the U.S. is broader than the right to receive it. Federal law dictates that any noncitizen who is physically present in the United States or arrives in the country, including outside a designated port of entry and regardless of status, may apply for asylum. But in order to be approved, individuals must prove that they qualify — typically by showing a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group. 

The statute cited in Percival's memo allows the government to pursue civil penalties against people accused of immigration-related document fraud, including those who knowingly prepare, file or help file applications that are false or contain false statements.

Any case would typically begin with a "notice of intent to fine," a formal charging document that informs the recipient that the government believes they violated the law and may be fined.

While recipients can fight the allegations before an administrative law judge, successful penalties can add up: first offenses can cost up to $4,730 for each fraudulent document or act, while subsequent offenses can reach up to $11,823 per document or act, according to the Justice Department.

The government could also seek a cease-and-desist order against certain targets. For attorneys, any fraud finding could be referred to disciplinary authorities and potentially lead to suspension or expulsion from practice before the immigration courts. In more serious cases, prosecutors might even consider criminal charges.

The government has long prosecuted organized asylum-fraud schemes. In 2023, federal prosecutors in New York City announced guilty pleas by immigration attorneys accused of preparing fraudulent asylum applications and affidavits and coaching clients to lie under oath. In 2021, a Florida man posing as an immigration attorney was sentenced to more than 20 years in prison after prosecutors said he filed hundreds of fraudulent asylum applications. And in 2019, an immigration attorney in Queens, New York, was sentenced to five years in prison for operating an asylum-fraud ring.

But in his memo, Percival wrote that ICE lawyers have not been using the administrative statute as aggressively as DHS would like: "Historically, ICE has depended on the discipline of immigration judges and the enforcement of criminal fraud laws to deter this conduct … but ICE has its own tools." The notice directed ICE attorneys to pursue document-fraud enforcement, seemingly as part of their immigration-court strategy.

The memo also appears to anticipate concerns about conflicts of interest, suggesting ICE must ensure that the attorney pursuing any fraud violation is appropriately separated from litigation of the underlying immigration case.

Inside President Trump's administration, the memo reflects a mounting focus on immigration lawyers, asylum advocates and large law firms challenging federal immigration policy. In March, the president issued a memo directing the attorney general to seek sanctions against lawyers and law firms that bring "frivolous, unreasonable, and vexatious litigation" against the U.S. or before federal agencies.

Percival's memo explicitly invoked Mr. Trump's directive, accusing some lawyers of coaching migrants in order to conceal facts or exaggerate asylum claims.

"As President Trump has explained," Percival wrote, "'the immigration bar, and powerful Big Law pro bono practices, frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims.'"

The White House's January executive order, "Protecting the American People Against Invasion," declared that the government would "faithfully execute the immigration laws" against inadmissible and removable noncitizens. Percival's memo quoted that order and said ICE lawyers must "zealously guard our immigration court system against all forms of fraud."

Immigration lawyers and advocates have previously sounded alarms, accusing the administration of working to deter legal challenges and chill asylum representation. The American Immigration Lawyers Association called the March presidential memo a "dangerous" threat to immigration attorneys, while advocacy groups have warned that the administration was targeting lawyers who specifically represent immigrants.