Bars to Applying for Asylum

Am I Ineligibility to Apply for Asylum?

An asylum-seeker is ineligible to apply for asylum under section 208(a)(2) of the INA if he or she:

1. Failed to file an asylum application (Form I-589) within one year of his or her last arrival in the United States or April 1, 1997, whichever is later 

• Exception to the I-Year Filing Deadline:

The applicant demonstrates either the existence of changed circumstances* which materially affect the applicant’s eligibility for asylum or extraordinary circumstances** relating to the delay in filing.  The applicant needs to have filed the application within a reasonable time given the exception.  

2. Previously applied for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals

• Exception to Previous Denials of Asylum:

The applicant establishes the existence of changed circumstances* which materially affect his or her eligibility for asylum.

3. Can be removed to a safe third country pursuant to a bilateral or multilateral agreement

• USCIS published regulations implementing a bilateral agreement between the United States an Canada on November 29, 2004. 
• Unless asylum-seekers arriving at a U.S./Canada land border port of entry or transiting through the United States while being removed from Canada fall within an exception to the agreement, they will be returned to Canada to seek protection there.
  

*Changed Circumstances: 

These may include but are not limited to the following:

• Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence;
  
• 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; or
  
• In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

**Extraordinary Circumstances:

These may include but are not limited to the following:

• 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;
  
• Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the 1-year period after arrival;
  
• Ineffective assistance of counsel, provided that:
  1. the applicant files an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
     
  2. the counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him or her and given an opportunity to respond; and
     
  3. the applicant indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not;
     
• The applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
  
• The applicant filed an asylum application prior to the expiration of the 1-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; or
  
• The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.