Understanding of Asylum Eligibilities

Qualification for the Asylum

Department of Justice defines that “asylum” is a form of relief available to noncitizens who fear persecution based on a protected ground in their country of nationality or last habitual residence. According to INA §§ 101(a)(42)(A), 208(b)(1), title 8 C.F.R. § 1208.13, an asylum must meet the statutory definition of a “refugee” stating that a person who is outside of their home country or where they last habitually resided  and who is unable or unwilling to return to, and is unable or unwilling to avail themselves of the protection of, that country; because of persecution or a well-founded fear of future persecution; on account of a protected ground—race, religion, nationality, membership in a particular social group, or political opinion.

The INA states that any noncitizen in the United States may apply for asylum. Generally, if an Immigration Judge grants asylum, the government cannot remove the applicant from the United States. However, there are several bars to receive asylum per government regulations and policies.

Ineligibilities to Apply for Asylum

The applicant may not be eligible to apply for asylum if he/she:

• did not comply with the 1-year filing deadline for filing an application for asylum within 1 year of your last arrival in the United States or April 1, 1997, whichever is later per – INA § 208(a)(2)(B); 8 C.F.R. § 1208.4(a);

• had a previous asylum application denied by an immigration judge or the Board of Immigration Appeals; or

• can be removed to a safe third country under a two-party or multi-party agreement between the United States and other countries.

In addition, the other ineligibilities for asylum are firm resettlement; aggravated felony charges; frivolous asylum claim; previously filed asylum application; and reinstated removal ordered by DHS or Immigration Judge.

Bars from Granting Asylum

The asylum applicant could be barred from granting asylum if they are found that the asylum applicant:

• was ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion

• was convicted of a “particularly serious crime” such that you are a danger to the United States

• committed a “serious nonpolitical crime” outside the United States

• pose a danger to the security of the United States

• have been firmly resettled in another country before arriving in the United States

Please note that the asylum status can be revoked or can be barred from receiving asylum if the asylum applicants were found to be inadmissible for the following reasons such as:

• have engaged in terrorist activity·

• are engaged in or are likely to engage after entry in any terrorist activity·

• have incited terrorist activity

• are a representative of a foreign terrorist organization

• are a member of a terrorist organization

• have persuaded others to support terrorist activity or a terrorist organization

• have received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization

• are the spouse or child of an individual who is inadmissible for any of the above within the last 5 years

Reference:

• INA §§ 208(b)(2)(A)(i), INA 241(b)(3)(B)(i); INA §§ 208(b)(2)(A)(ii), INA 241(b)(3)(B)(ii)

• INA §§ 208(b)(2)(A)(iii), INA 241(b)(3)(B)(iii); INA §§ 208(b)(2)(A)(iv), INA 241(b)(3)(B)(iv)

• INA §§ 208(b)(2)(A)(v), INA 241(b)(3)(B)(iv)