• Bars to Asylum Application
  • October 21, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) established three bars to applying for asylum. The three bars, found in section 208(a)(2) of the Immigration and Nationality Act (INA) are:
    • (A) Safe Third Country Bar
    • (B) Time Limit
    • (C) Previous Asylum Applications
    Before looking at each bar in greater detail, it is important to note that the bars only apply to asylum applications that were filed on or before April 1, 1997. Asylum applications that were filed prior to that date will be adjudicated under the rules that existed at the time of the original filing.

    A - Safe Third Country Bar

    The safe third country bar only applies to Canada under current law.[1] The United States’ safe third country agreement with Canada generally requires that an alien who arrives in the United States or Canada must make an asylum application in whichever country he or she arrives in first. If an asylum applicant had first arrived in Canada, he or she will be removed to Canada to apply for asylum there instead unless he or she qualifies for an exception. There are five regulatory exceptions to this rule:
    • The alien is either a Canadian citizen or, if lacking nationality, last habitually resided in Canada;
    • 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 (except for B-1, B-2, or status pursuant to the Visa Waiver Program);
    • 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;
    • The alien entered the United States with a validly issued visa or 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 hold a visa to enter the United States; or
    • The director of United States Citizenship and Immigration Services (USCIS) determines that allowing the alien to pursue a claim for asylum in the United States is in the national interest.[2]
    An alien who appears to be subject to the safe third country bar will be granted a threshold screening interview to determine whether he or she qualifies for an exception.[3] The alien must demonstrate eligibility by the preponderance (weight) of the evidence.[4]

    B - Time Limit

    Applicants for asylum are required to apply for asylum within 1 year of arrival in the United States, or will be subsequently barred from applying for asylum. The only exceptions to this rule are if the alien demonstrates “changed circumstances” that materially affect asylum eligibility, or “extraordinary circumstances” that caused the asylum application to be late.[5]

    In order to demonstrate “changed circumstances,” the applicant must prove by clear and convincing evidence that something changed that would have an effect on the applicant’s asylum eligibility.[6] This effectively means that the applicant must show that the reason he or she did not apply for asylum before was because he or she would not have been eligible, but that something changed that renders the asylum for the alien appropriate at the later date. An asylum applicant may appeal to the following in order to obtain a waiver from the time limit bar:
    • Changes in the applicant’s country of nationality or (if stateless) country of last habitual residence;
    • Changes in the applicant’s circumstances that materially affect his or her asylum eligibility (including changes in U.S. law); or
    • If the applicant had previously been included as a dependent in a pending asylum application, the loss of the qualifying relationship to the principal asylum applicant.[7]
    If the applicant is found to be eligible for a waiver, it is still incumbent on the applicant to apply for asylum within a reasonable period of time that takes the changed circumstances into account.[8]

    “Extraordinary circumstances” relate to circumstances that prevented the applicant from filing for asylum in a timely manner. In order to qualify for an extraordinary circumstances waiver, the applicant must demonstrate that:
    • The circumstances were not intentionally created by the applicant;
    • The circumstances were directly related to the failure to meet the filing deadline; or
    • The delay was reasonable given the circumstances.[9]
    Regulations list factors that may qualify as “extraordinary circumstances” (please note that the list is explicitly non-exhaustive):

    • Serious illness or disability (including effects of persecution or violent harm in the past);
    • Legal disability (e.g., applicant was an unaccompanied minor or suffered from mental impairment);
    • Ineffective assistance of counsel;
    • The applicant maintained Temporary Protected Status, other lawful status, or was granted parole until a reasonable period before the filing of the asylum application;
    • The application was submitted before the deadline, rejected as improperly filed, but quickly resubmitted with corrections by the applicant in a reasonable period after the deadline; or
    • The death, serious illness, or incapacity of the applicant’s legal representative or member of the applicant’s immediate family.[10]
    If the applicant is granted a waiver, he or she must apply for asylum within a reasonable period from the grant of the waiver. Six months after the finding of extraordinary circumstances is generally considered to be reasonable.

    C - Previous Asylum Applications

    An applicant who was previously denied asylum is barred from applying for asylum in the United States unless he or she demonstrates that changed circumstances materially affect his or her eligibility for asylum.[11] Essentially, this requires the applicant to demonstrate that something, either in the applicant’s country of nationality or (if stateless) country of last habitual residence or in the applicant’s circumstances (including relevant changes in U.S. law) that would make the applicant eligible for asylum after having been denied previously.

    Advice for Dealing with Bars to Applying for Asylum

    A person who believes that he or she is eligible for asylum in the United States but for a bar to applying for asylum should contact an experienced immigration attorney immediately. While there is no guarantee that the applicant will qualify for an exception to a bar to applying for asylum, an experienced immigration attorney will do his or her due diligence to assess whether the applicant has sufficient grounds for a waiver. In fact, applicants who believe they may be eligible for asylum should contact an experienced immigration attorney as soon as possible. By doing so expeditiously, an asylum hopeful may be able to successfully apply for asylum before ever becoming subject to the second or third bar.
    1. 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)
    2. 8 C.F.R. 208.30(e)(6)(iii) [for the list]
    3. 8 C.F.R. § 208.30(e)(6)(i)
    4. 8 C.F.R § 208.30(e)(6)(ii)
    5. INA § 208(a)(2)(B), (D); 8 C.F.R. §§ 204.4(a)(4)-(5); 65 FR 76121-01 (Dec. 6, 2000)
    6. INA § 208(a)(4)
    7. 8 C.F.R. § 208.4(a)(4) [for the list]
    8. 8 C.F.R. § 208.4(a)(4)(ii)
    9. 8 C.F.R. § 208.4(a)(5) [for the list]
    10. Id.
    11. INA § 208(a)(4)