UNDERSTANDING THE BARS ON APPLYING FOR ASYLUM
INTRODUCTION TO BARS TO ELIGIBILITY FOR ASYLUM
The decision on whether to grant an asylum applicant asylum in the United States is discretionary and based on the specific facts of the asylum claim. However, under certain situations, an asylum applicant may be barred from asylum eligibility regardless of the other points that favor his or her claim for asylum claim.
PERSECUTION OF OTHERS
Pursuant to INA § 101(a)(42)(A), a “refugee” is any person who is unable or unwilling to return to or avail him or herself to the protection of his or her country of nationality (or if without nationality, country of last habitual residence) because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Similarly to the bar on eligibility for asylum that we are discussing, INA § 101(a)(42)(B) precludes anyone from qualifying as a “refugee” who persecuted others on those same grounds. In plain English, this bar to eligibility for asylum prevents an alien who engaged in acts that would support a different alien’s eligibility for asylum from being eligible for asylum.
Pursuant to 8 C.F.R. §§ 208.13(c) and 1208.13(c), where the evidence indicates that the asylum applicant participated in the persecution of others, the burden is on the applicant to prove by the preponderance of the evidence that he or she did not participate in the persecution of others.
The Supreme Court held in Neguise v. Holder, 555 U.S. 511 (2009), that the Fifth Circuit and the BIA had erred by not considering an asylum applicant’s claim that his persecution of others had been coerced. Prior to Neguise, the Board of Immigration Appeals (BIA) had relied upon the holding of the Supreme Court decision in Fedorenko v. U.S., 449 U.S. 490 (1981), which was not an asylum case but had held that there is no involuntary assistance exception to the persecution of others.
The Sixth Circuit has held that, in order for the persecution of others bar to attach, there must be a nexus between the asylum applicant’s actions and the persecution such that there was actual assistance by the applicant , and the asylum applicant must have had contemporaneous knowledge of the persecution occurring. The Second Circuit has held that the persecution requires “active” conduct that has “direct consequences for the victim” and is “not tangential” to the persecution.5 Different courts have held that it must be shown that the asylum applicant was personally involved in the persecution and that this assistance was material in order to be ineligible for refugee classification. The First Circuit has held that persecution of others cannot be determined from the applicant’s membership in a particular group.
The variety of opinions regarding what constitutes “persecution of others” and the standards applied indicate that each case will be decided based on a fact-specific inquiry. In any situation where evidence indicates that an asylum applicant was involved in the persecution of others, the burden will be upon the applicant to demonstrate otherwise.
PARTICULARLY SERIOUS CRIME
The particularly serious crime bar to eligibility for asylum is applicable regardless of when the asylum application was filed. However, certain crimes are considered particularly serious or not depending on the filing date of the asylum application or the location of the crime’s commission:
For applications filed before November 29, 1990, an aggravated felony is generally not considered a “particularly serious crime”;
For applications filed before April 1, 1997, the conviction for a particularly serious crime must have occurred within the United States;
For applications filed after April 1, 1997, the conviction for a particularly serious crime may have occurred within the United States or abroad.
The requirements for triggering the particularly serious crime bar to eligibility for asylum are:
That the applicant was convicted by a final judgment;
That the crime was “particularly serious”;
That the applicant constitutes a danger to the U.S. community.
“Particularly serious crime” is not explicitly defined by statute. The USCIS lesson plan states that most particularly serious crimes will be aggravated felonies. Provided the asylum application was filed after November 29, 1990, the conviction of an aggravated felony will trigger the particularly serious crime mandatory bar to asylum eligibility (it is a discretionary bar if the application was filed before November 29, 1990). Of note, this will include many “crimes of violence” and most federal convictions involving controlled substances, among many other offenses. However, a crime may trigger the bar even if it is not classified as an aggravated felony. The BIA now considers whether a crime is “particularly serious” and whether the asylum applicant is a “danger to the community” as a single determination focusing on “the nature of the crime and not the likelihood of future serious misconduct.” The BIA has held that once a crime appears to be within the range of particularly serious, either party may present evidence that the crime should or should not meet the standard. For crimes that are not aggravated felonies, USCIS instructs its officers to consider the nature of the conviction, the sentence imposed, the circumstances and facts of the conviction, and whether the type and circumstances of the crime indicate that the alien would be a danger to the community. There is no exception from this bar for other reasons weighing in favor of granting asylum, including for the applicant’s community and family ties in the United States.
SERIOUS NONPOLITICAL CRIME OUTSIDE OF THE UNITED STATES
The serious nonpolitical crime bar only results in the mandatory denial of asylum for asylum applications filed after April 1, 1997. For applications filed before that date, the commission of a serious nonpolitical crime outside of the United States may weigh against the grant of asylum, but it does not constitute a bar to eligibility for asylum.
The BIA held in Matter of Fentescu, 18 I&N Dec. 244, 247 (BIA 1982) that a serious nonpolitical crime is less serious than a particularly serious crime. The standard of proof for whether a serious nonpolitical crime was committed abroad is “probable cause.”
The BIA’s decision in Matter of E-A-, 26 I&N (BIA 2012) established a three-pronged test for determining whether a crime committed abroad was political in nature:
Whether the act or acts were directed at a government entity or political organization;
Whether the act or acts were directed toward the modification of the political organization of the state;
Whether there is a close and direct causal link between the crime and political purpose.
The BIA previously held in Matter of McMullen 19 I&N (BIA 1984), which remains controlling law, that a crime is “political” when the political elements of the offense outweigh its common-law character. The BIA held further in McMullen that, even where the crime is political, the balance need not be struck if the common law nature of the offense was grossly out of proportion to its political objectives, or the crime was “atrocious” in nature. The U.S. Supreme Court decision in INS v. Aguirre-Aguirre, 526 U.S. (1999), upheld this line of reasoning, and stated that the “atrociousness” of the offense need not be considered if the common-law aspects of the offense are found to outweigh the political ones.
Determining whether a serious crime was political is always going to be a very fact-specific inquiry. The nature of the offense, its intended target, the circumstances surrounding the conviction, and the conditions of where it took place will all be weighed in determining whether a given offense should trigger the mandatory denial of asylum.
SECURITY RISK TO THE UNITED STATES
Provided that there are reasonable grounds to believe that the asylum applicant is a security risk to the United States, he or she will face a mandatory denial of asylum. With regard to a similar bar for withholding of removal, the Third Circuit upheld the Attorney General’s interpretation of “security risk” as requiring only probable cause to believe in the existence of a non-trivial security risk, but required that the bar attaches only if the applicant is a risk rather than may be a risk.
FIRM RESETTLEMENT BAR
Pursuant to regulations found in 8 C.F.R. § 208.15, an alien will trigger the firm resettlement bar to eligibility for asylum if he or she entered another country upon flight from persecution and, while in that country, received an offer of permanent residence or citizenship, unless:
(a) 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
(b) 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.
Part (b) also explains that an immigration judge should study the conditions in which other residents of the country live and the types of benefits and privileges afforded to the refugee compared to other residents of the country.
The bar clearly requires “permanent” residence at a minimum, and thus an offer of “temporary” residence should not trigger the firm resettlement bar. However, provided that firm resettlement is found, the bar attaches even if the alien no longer has status or an offer of status in the third country.
The burden of proof is on the government to demonstrate firm resettlement. The BIA held in Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011), that where the government meets this burden, the asylum applicant must establish, by a preponderance of evidence, that he or she was not offered permanent residence in the third country or how he or she would not qualify for it. Matter of A-G-G- held that in that scenario, the immigration judge must weigh the evidence presented by the government and by the applicant in rebuttal in applying the relevant regulations to determine whether the firm resettlement bar should apply.
Persons with dual nationality may not overcome the firm resettlement bar unless they demonstrate that the third country would not provide protection.
However, firmly resettled or not, if the applicant demonstrates that he or she has a well-founded fear of persecution in the third country, the firm resettlement bar shall not attach.
CONCLUSION TO MANDATORY BARS TO ASYLUM
Any person applying for asylum should consult with an experienced immigration attorney for the entire asylum application process. Overcoming a bar to eligibility for asylum is a daunting task. Each bar relies upon a fact specific inquiry that will depend on the nature and circumstances of a given case. While there is no guarantee that the mandatory denial of asylum can be avoided in any case where there appears to be evidence supporting a bar, an experienced immigration attorney who will study the applicant’s situation and then use his or her extensive knowledge of the myriad precedents associated with the applicable bar to eligibility for asylum will be the most important asset to an applicant in aiming to achieve a successful conclusion to the asylum application process.
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