Immigration 101: Asylum: Statutory Bars
Even if you meet all the affirmative requirements for asylum in the US – past and future persecution, membership in a statutorily protected group, governmental inability or unwillingness to control the problem on a nationwide scale, and equities that merit a favorable exercise of discretion – there may still be statutory bars that prevent you from being granted asylum. We discuss them in greater detail below.
The One-Year Bar
To be eligible for asylum, you must file your application within one year of entering the United States. There are only two exceptions to this deadline: First, you may still apply if you can demonstrate that there were “extraordinary circumstances” that prevented you from filing within one year. Extraordinary circumstances include serious illness or disability, ineffective assistance of counsel, maintaining other immigration status, or the death or serious illness of a family member or of your immigration attorney. Second, you may still apply if you can show that there were “changed circumstances” that directly affect your eligibility for asylum. For example, if you were a member of a minority religious group, and five years after you arrived in the United States, groups in your home country targeted members of your religious group for persecution, you would probably be allowed to apply for asylum because circumstances in your home country had changed such that you might reasonably fear future persecution if you returned. The one-year bar would also not apply if you had a religious conversion after arriving in the US, and members of your new religion were subject to persecution in your home country.
Even if the one-year bar prevents you from applying for asylum, you may still be able to avoid being removed from the US by applying for withholding of removal, which is a similar form of relief available to people who face persecution in their home countries. The requirements for establishing eligibility for withholding are much more demanding than the requirements for asylum. If you don’t meet the requirements for withholding, you may still be eligible for a limited form of relief under the Convention Against Torture.
You are not eligible for asylum if you have been convicted of a “particularly serious crime.” There is no specific definition of this phrase, but immigration judges usually look at the statutory definition of the crime, the circumstances of the underlying conduct, the length of the sentence, and whether the fact that you committed the crime shows that you would be a continuing danger to the community. Crimes defined by law as aggravated felonies are always considered particularly serious crimes, unless the conviction occurred before October 1, 1990.
Other Statutory Bars
If you fled persecution in your home country, and then resettled in a third country before you came to the US, you cannot seek asylum in the US. A temporary visit or brief stay in a third country before your arrival in the US does not count as resettlement, but if you stayed in a third country after being offered some type of citizenship or permanent resident status there, the resettlement bar applies and you will not be eligible for asylum.
If you previously applied for asylum in the US but were denied, you cannot apply again unless there has been a change in circumstances that affects your eligibility.
If you participated in the persecution of others, have been involved in terrorism, or would otherwise be a security threat to the US, you are not eligible for asylum.
This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.
The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.