Bars to Applying for Asylum

bars to applying for asylum

 

Introduction

There are numerous bars to applying for asylum and eligibility for asylum [see category]. Relying upon statutes, regulations, judicial guidance, and a United States Citizenship and Immigration Services (USCIS) lesson plan [PDF version] for officer basic training, this article will examine the bars to applying for asylum. To learn about the bars to eligibility for asylum, please follow this link to read our detailed article on the subject.

Bars to Applying for Asylum

Prior to September 30, 1996, the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the only bar that existed to applying for asylum was conviction of an aggravated felony.1 The IIRIRA made the conviction of an aggravated felony a bar to being granted asylum rather than a bar to applying for asylum, but at the same time, also created three new bars to applying for asylum. It is important to note that these bars to applying for asylum only apply to asylum applications that were filed on our after April 1, 1997.2 Older asylum applications shall be adjudicated under the rules that existed at the time.

Section 208(a)(1) of the Immigration and Nationality Act (INA) hold that any alien who is physically present or who arrives in the United States may apply for asylum where applicable. However, INA § 208(a)(2) lists three exceptions to eligibility to apply for asylum:

(A) Safe Third Country - If the Attorney General determines that the alien may be removed pursuant to a bilateral or multilateral agreement to a country (but not the alien's home country or country of last habitual residence if the alien has no nationality) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection (may be waived if the Attorney General determines it is in the public interest for the alien to receive asylum in the United States).
(B) Time Limit - Alien cannot demonstrate by clear and convincing evidence that his or her asylum application has been filed within 1 year of the date of his or her arrival in the United States.
(C) Previous Asylum Applications - Alien has previously applied for asylum in the United States and been denied.

Safe Third Country

Effective December 29, 2004, the United States entered into a Safe Third Country Agreement with Canada.3

Pursuant to the agreement, a person who arrives in the United States or in Canada must make an asylum application in whichever country he or she arrives in first. There are five regulatory exceptions to this rule found in 8 C.F.R. 208.30(e)(6)(iii):

(A) The alien is either a citizen of Canada or, not having a nationality, last habitually resided in Canada;
(B) The alien has a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew in the United States on lawful status. However, this shall not apply if the relative has status as a nonimmigrant visitor (B-1 or B-2 visa) or if the relative is only maintaining visitor status pursuant to admission under the Visa Waiver Program (VWP) [see article];
(C) The alien has a spouse, son, daughter, parent, legal guardian, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew who is at least 18 years of age and has a pending asylum application in the United States;
(D) The alien is an unmarried child under 18 years of age and does not have a parent or legal guardian in either Canada or the United States [also see INA § 208(a)(E)];
(E) The alien arrived in the United States with a validly issued visa or other admission document, other than for transit, that was issued by the United States to the alien, or being required to hold a visa to enter Canada, was not required to obtain a visa to enter the United States; or
(F) The director of USCIS determines, in his or her unreviewable discretion, that it is in the public interest to allow the alien to pursue a claim for asylum, withholding of removal, or protection under the Convention Against Torture, in the United States.

Aliens arriving at a land border port of entry from Canada, or aliens in transit after being deported from Canada [these provisions apply the same for aliens arriving in Canada or in transit through Canada after being removed from the United States], will be granted a threshold screening interview to determine whether he or she qualifies for an exception from the agreement [8 C.F.R. § 208.30(e)(6)(i)]. A supervisory asylum officer will make the final determination whether the alien is eligible for an exception. The alien must establish eligibility for the exception by the preponderance of the evidence [8 C.F.R § 208.30(e)(6)(ii)].

If an alien is found to be barred under the Safe Third Country provision, he or she will be returned to Canada to seek asylum, or if brought to Customs and Border Protection's (CBP's) attention, will be stripped of parole status and treated as an arriving alien.4 If the alien is returned to the United States by Canada after having been in the United States illegally, he or she will be put in removal proceedings as a deportable person.5

Immigration judges do not have jurisdiction to review the decision to return an alien to Canada pursuant to the agreement.6 However, an immigration judge may review a claim by the Department of Homeland Security that an alien is barred from applying for asylum pursuant to the statutory provision underlying the agreement, and may also ascertain whether other forms of relief may be available to the alien.7

Canada currently has a moratorium on the removal of persons from Afghanistan, Burundi, Democratic Republic of the Congo, Haiti, Iraq, Liberia, Rwanda, and Zimbabwe.8 Therefore, a citizen or national of one of those countries, or a person without nationality who last habitually resided in one of those countries, would not be returned from Canada to the United States under to the agreement.

Time Limit

Applicants must apply for asylum within 1 year of arrival in the United States unless the applicant demonstrates changed circumstances that materially affect asylum eligibility, or extraordinary circumstances that caused the filing for asylum to be late.9 The applicant is required to provide clear and convincing evidence, a high standard of proof, that he or she is filing for asylum within the requisite time period [8 C.F.R. § 208.4(a)(2)].

The date that the applicant arrives in the United States is not counted toward the 1-year limit.10 The 1-year period begins to accrue after the applicant's last arrival in the United States.11 The bar is limited if the applicant is dependent on a spouse's asylum application.12 If an asylum beneficiary's asylum status is revoked, the 1-year period begins at the date of the revocation.13

An application is considered “filed” when it is received by USCIS or the Executive Office of Immigration Review (EOIR).14 Accordingly, if the end of the 1-year period would fall on a weekend or holiday, the 1-year period will continue until the soonest weekday [8 C.F.R. § 208.4(a)(2)(ii)]. If USCIS does not receive the application within the year, the applicant may demonstrate that he or she complied with the 1-year requirement by providing clear and convincing evidence that the application was mailed before the deadline, and that the mailing date should be considered the filing date [8 C.F.R. 208.4(a)(2)(ii)].

Circuit Courts have split on whether the 1-year filing requirement applies to minors in general.15 However, pursuant to INA § 208(a)(2)(E), the 1-year filing requirement explicitly does not apply to unaccompanied minors.

Exception: Changed Circumstances

An applicant may obtain an exception from the 1-year bar if he or she demonstrates that changed circumstances exist that would materially relate to the applicant's asylum eligibility [INA § 208(a)(4); 8 C.F.R. § 208.4(a)(4)(i)]. Pursuant to 8 C.F.R. § 208.4(a)(4), such changed circumstances may include:

(A) Changes in conditions in applicant's country of nationality or, if the applicant is stateless, country of last habitual residence;16
(B) Changes in the applicant's circumstances that materially affect the applicant's eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk;17 or
(C) If the applicant had previously been included as a dependent in another applicant's pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or turning 21 years of age.

Even if the applicant satisfies one of the three regulatory exceptions, he or she must still file within a reasonable period of time, taking the changed circumstances into account [8 C.F.R. § 208.4(a)(4)(ii)].18 Changed circumstances may be demonstrated even if they further support a preexisting basis for asylum rather than establish a new basis for asylum.19

Exception: Extraordinary Circumstances

This exception relates to circumstances particular to the failure to meet the 1-year filing deadline rather than to circumstances relating to the underlying factors pertaining to the asylum claim. In order to demonstrate “extraordinary circumstances,” the applicant must show pursuant to 8 C.F.R. § 208.4(a)(5) that:

the circumstances were not intentionally created by the applicant through his or her own action or inaction; and
the circumstances were directly related to the failure to meet the filing deadline; and
the lengthy delay is reasonable given the nature of the circumstances.

The same section of the regulations lists factors that may qualify as “extraordinary circumstances”:

(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;
(ii) Legal disability (e.g., the applicant was an unaccompanied minor or suffered from mental impairment) during the 1-year period after arrival;
(iii) Ineffective assistance of counsel (legal representation) [see footnote 19 for more requirements];20
(iv) The applicant maintained Temporary Protected Status (TPS) [see article], lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
(v) The applicant's asylum application was submitted before the deadline, rejected by USCIS as improperly filed, returned to the applicant for corrections, and refiled within a reasonable period thereafter but after the deadline; and
(vi) The death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family.

This list, while extensive, is not exhaustive. It is possible an applicant may demonstrate “extraordinary circumstances” using factors that are not listed.21

Regulatory history indicates that 6 months' delay after the “extraordinary circumstance” is generally considered to be “reasonable,” but any delay beyond 6 months will be considered, at the very least, suspect.22

Previous Asylum Applications

An applicant who was previously denied asylum is barred from applying for asylum unless he or she demonstrates that changed circumstances exist that materially affects asylum eligibility [INA § 208(a)(4)]. The applicant may file a new application before a final order of removal if he or she successfully demonstrates changed circumstances.23 However, after a final order of removal, the applicant may only file for asylum through a motion to reopen and under the “changed country condition” standards found in INA § 1229a(c)(7)(C)(ii) f it is beyond the 90-day period for a motion to reopen.24

The Lesson Plan for USCIS officers provides an example of what would satisfy the “changed circumstances” requirement here. The example is a man from China who applies for asylum in 1995 for fear of being forcibly sterilized should he be returned to China. In January of 1996, his asylum applications denied and he left under a grant of voluntary departure. In 1998, he entered the United States without inspection (EWI) and filed a second asylum application. He argues that a change in U.S. immigration law in the IIRIRA [codified persecution on account of resistance to forced sterilization programs as persecution based on political opinion] materially changes his eligibility for asylum. Under this scenario, the applicant would have demonstrated the requisite changed circumstances.25

Advice

It is important for any person considering an asylum application to retain an experienced immigration attorney and to be aware of the bars to applying for asylum.

Under current law, the Safe Third Country bar mainly requires most asylum applicants who arrive in the United States or Canada to apply for asylum in the country of first arrival. If a prospective asylum applicant arrived in Canada but thinks that he or she may be eligible to apply for asylum in the United States, he or she should consult with an experienced U.S. immigration attorney to determine whether one of the exceptions may be applicable.

Asylum hopefuls are best advised to file for asylum expeditiously in order to meet the filing deadline. A failure to apply within 1 year of last arrival will severely jeopardize an applicant's opportunity to obtain asylum. An applicant who fails to meet the deadline should consult with an experienced immigration attorney for an evaluation of whether he or she may be able to demonstrate “changed circumstances” or “extraordinary circumstances.” However, these forms of relief from the bar are discretionary, and there is no guarantee the prospective applicant will ultimately be allowed to apply for asylum.

An applicant with a previously denied asylum application who believes that changed circumstances exist that materially affect his or her eligibility should expeditiously consult with an experienced immigration attorney.

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  1. USCIS, “Lesson Plan Overview: Mandatory Bars to Asylum and Discretion” 6
  2. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 662, citing Kankamalage v. INS, 335 F.3d 858 (9th Cir. 2003) [the pre-1997 rules only apply to asylum applications filed before the effective date of the new regulations, therefore the particularly serious crime bar is not applicable where the crime occurred before the effective date of the new law but the asylum application as filed after]
  3. Kurzban 657, citing 8 C.F.R. §§ 208.4(a)(6), 208.30(e)(6), 212.5(e)(2)(iii), 1003.42(h), 1208.4(a)(6), 1240.11; 69 FR 69480-97 (Nov. 29, 2004); 69 FR 10620-27 (Mar. 8, 2004)
  4. Kurzban, 658
  5. Kurzban, 658, citing Memo, Ahern (Dec. 22, 2004); 69 FR at 69484 [unless a parolee, alien “will not be subject to expedited removal because he or she will not meet the definition of 'arriving alien'”]. Matter of R-D-, 24 I&N Dec. 22 (BIA 2007) [deportation charge dismissed where alien should have been charged as an “arriving alien” after being removed from Canada pursuant to the agreement].
  6. Kurzban 658, citing 8 C.F.R. §§ 1003.42(h)
  7. Kurzban 658, citing 8 C.F.R. §§ 1208.4(a)(6), 1240.11(g)
  8. Kurzban 658
  9. Kurzban 659, citing INA § 208(a)(2)(B), (D); 8 C.F.R. §§ 204.4(a)(4)-(5); 65 FR 76121-01 (Dec. 6, 2000)
  10. Kurzban 659, citing Minasyan v. Mukasey, 553 F.3d 1224, 1227-29 (9th Cir. 2009)
  11. Kurzban 659, citing Matter of F-P-R-, 24 I&N Dec. 681 (BIA 2008) [last arrival is unambiguous and refers to last trip into the United States]. But see, Joaquin-Porras v. Gonzalez, 435 F.3d 172, 178-80 (2d Cir. 2006) [applicant who had been in country for many years barred from applying for asylum even though last arrival as a parolee was within a year of the application]
  12. Kurzban 659, citing Lumataw v. Holder, 582 F.3d 78, 85-86 (1st Cir. 2009)
  13. Kurzban 659, citing Diallo v. Gonzalez, 447 F.3d 1274, 1282 (10th Cir. 2006)
  14. Kurzban 659
  15. Bernal-Rendon v. Gonzalez, 419 F.3d 877, 880-81 (8th Cir. 2005) [does apply]. El Himri v. Ashcroft, 378 (F.3d 932 (9th Cir. 2004) [does not apply].
  16. e.g., Kurzban 659-60, citing Singh v. Holder, 656 F.3d 1047, 1052-53 (9th Cir. 2011) [Immigration judge failed to consider whether wife's arrest in home country after husband departed was a changed circumstance]; Vahora v. Holder, 641 F.3d 1038 (9th Cir. 2011) [riots in India for Indian Muslims after Gujarat riots where applicant's home was destroyed and his brother disappeared]
  17. Kurzban 660, citing Shi Jie Ge v. Holder, 588 F.3d 90, 94-95 (2d Cir. 2009) [BIA mistaken in focusing on when the applicant joined a political party in China instead of the date that the Chinese government discovered his activities]
  18. Kurzban 660, citing 62 FR 103212, 10316 )(Mar. 6, 1977); Matter of T-M-H- & S-W-C-, 25 I&N Dec. 193 (BIA 2010) [6 months beyond changed circumstances would not be unreasonable on the face, but the Immigration Judge erred in granting extension without evaluating the reason]; Lumataw v. Holder, 582 F.3d 78, 85-91 (1st Cir. 2009) [after Immigration Judge's error in counting the 1-year deadline was corrected, applicant may attempt to establish reasonable period of time based on changed circumstances]
  19. Kurzban 660, citing Singh v. Holder, 656 F.3d 1047, 1053-54 (9th Cir. 2011)
  20. The alien must file an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and the representations that counsel made to the applicant in this regard; (B) The counsel is given the opportunity to respond; (C) The applicant indicates whether a complaint against the counsel has been filed with the appropriate disciplinary authorities with respect to the alleged violations, and if not, why not.
  21. Kurzban 661, citing 62 FR 10312, 10316 (Mar. 6, 1997); see e.g. Viridiana v. Holder, 646 F.3d 1230, 1235-39 (9th Cir. 2011) [immigration consultant fraud constituted extraordinary circumstances]
  22. Kurzban 661, citing 65 FR 76121, 76123-24 (Dec. 6, 2004). Al Ramahi v. Holder, 725 F.3d 1133 (9th Cir. 2013) [15-month delay after lapse of lawful status and deficient advice was not reasonable]; Husyev v. Mukasey, 528 F.3d 1172, 1180-82 (9th Cir. 2008) [6 months is reasonable, rejecting argument that denial for 1-year delay is unreasonable]
  23. Kurzban 658
  24. Kurzban 659
  25. USCIS Lesson Plan at Page 10

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 657-61, Print. Treatises & Primers.

USCIS, Lesson Plan Overview: Mandatory Bars to Asylum and Discretion. March 25, 2009. Web. available at www.uscis.gov [PDF version]

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