• Asylum Eligibility Bars
  • November 10, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Bars to Asylum Eligibility
     
    The decision on whether to grant an asylum application is discretionary decision based on the facts of each specific case. However, there are certain bars to asylum eligibility which, if triggered, require than an asylum application is denied.

    The bars to asylum eligibility are found in section 208(b)(2)(A) of the Immigration and Nationality Act. The bars are the following:
    1.  Persecution of Others Bar
    2.  Particularly Serious Crime Bar
    3.  Serious Nonpolitical Crime Outside the United States Bar
    4.  Security Risk to the United States Bar
    5.  Terrorism Related Inadmissibility Grounds (TRIG) Bar
    6.  Firm Resettlement Bar
    1 - Persecution of Others Bar

    This bar precludes a person who persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion. Essentially, if an asylum applicant engaged in activities that would support another applicant’s asylum claim, he or she is barred from asylum.

    Regulations require that where the available evidence indicates that an asylum applicant engaged in the persecution of others, the burden is on the applicant to prove otherwise.[1] The Supreme Court has held that adjudicators must consider whether the persecution was coerced.[2] There are many lower court decisions on this subject. There are many conflicting decisions in lower courts on what generally constitutes the “persecution of others.” An experienced immigration attorney will be able to help an applicant with his or her knowledge of the most current judicial precedents in his or her Circuit. Ultimately, where evidence indicates that an asylum applicant may have participated in the persecution of others, a fact specific inquiry will be used to determine whether the alleged actions constitute a bar to asylum eligibility.
     
    2 - Particularly Serious Crime Bar

    For asylum applications filed after November 29, 1990, a conviction for an aggravated felony will generally trigger the particularly serious crime bar. For applications filed prior to April 1, 1997, the crime must have occurred in the United States to trigger this bar (but for after April 1, 1997, it does not matter where the crime occurred). It is important to note that the bar is not restricted to aggravated felonies, and that adjudicators will consider whether the applicant poses a danger to the community in deciding whether the particularly serious crime bar should attach. If it is determined that the bar should attach, waivers that may otherwise favor the applicant’s eligibility cannot overcome the bar.[3]
     
    3 - Serious Nonpolitical Crime outside the United States Bar


    This bar only applies to asylum applications that were filed after April 1, 1997. A crime that would trigger this bar may weigh against granting an asylum application that was filed before that date, but it would not constitute an automatic bar. The Board of Immigration Appeals has held that a “serious nonpolitical crime” is less serious than a “particularly serious crime.”[4] Whether the crime is political or not will depend on whether the political elements of the offense outweigh its common law character.[5] However, even if the crime is found to have been political, adjudicators and courts may still consider whether the crime was “atrocious” in nature.[6]
     
    4 - Security Risk to the United States Bar

    If adjudicators have reasonable grounds to believe that an asylum applicant is a security risk to the United States, the applicant will be barred from asylum.
     
    5 - Terrorism Related Inadmissibility Grounds (TRIG) Bar

    The TRIG applies to asylum applications filed on or after May 11, 2005. It attaches to an asylum applicant who would be inadmissible[7] or deportable[8] for terrorism or other security-related grounds. If the evidence indicates that an asylum applicant should be subject to a TRIG bar, the applicant must demonstrate by the very high clear and convincing evidence standard that he or she should not be subject.[9] It is important to note that while material support to a terrorist organization will generally trigger a TRIG bar, material support provided under duress will not trigger the bar.[10]
     
    6 - Firm Resettlement Bar

    An applicant who entered a third country while fleeing persecution and in that country received an offer of permanent residence or citizenship will generally be barred from asylum eligibility. However, regulations state that there are two situations in which this bar will not attach:
    • the alien demonstrates that entry into that country was a necessary consequence of his or her flight from persecution, and that he or she only remained in that country as long as necessary to travel onward, and that he or she did not establish significant ties to the country; or
    • that the conditions of his or her residence in that country were so substantially or consciously restricted by authorities in the country of refuge, that he or she was not resettled.[11]
    An offer of anything less than permanent residence will generally not trigger the bar. However, the bar will trigger if the government demonstrates firm resettlement even where the asylum applicant no longer has status in the third country.[12] An applicant with dual nationality (with the second nationality being the third country) cannot overcome this bar unless he or she demonstrates that the third country would not provide protection.[13] However, if an applicant demonstrates that he or she would face persecution in the third country, the bar shall not attach.[14]

    Conclusion
     
    A person facing a mandatory bar to asylum eligibility should consult with an experienced immigration attorney immediately. Ultimately, whether the bar can be avoided will depend on the specific facts of the applicant’s case. However, an experienced immigration attorney will be able to ensure that the applicant puts forth the best possible argument against a bar to asylum eligibility attaching.


    1. 8 C.F.R. §§ 208.13(c), 1208.13(c)
    2. Neguise v. Holder, 55 U.S. 511 (2009)
    3. See for example: Matter of L-S-J-, 21 I&N Dec. 973 (BIA 1997)
    4. Matter of Frentescu, 18 I&N (BIA 1982)
    5. Matter of McMullen 19 I&N (BIA 1984)
    6. INS v. Aguirre-Aguirre, 526 U.S. (1999). Matter of McMullen 19 I&N (BIA 1984)
    7. Under INA § 212(a)(B)(i)
    8. Under INA § 237(a)(4)
    9. Matter of S-K-, 23 I&N (BIA 2006)
    10. Memo, Chertoff, Secy. Of DHS, Exercise of Authority Under Sec. 212(d)(3)(B)(i) (Apr. 27, 2007), published on AILA InfoNet at Doc. No. 07050168
    11. 8 C.F.R. § 208.15
    12. Sultani v. Gonzales, 455 F.3d 878, 883-84 (8th Cir. 2006)
    13. Matter of B-R-, 26 I&N Dec. 119 (BIA 2013)
    14. Siong v. INS, 376 F.3d 1030, 1040 (9th Cir. 2004)