We should start with a reminder that asylum cannot be viewed as a convenient way to extend your lawful stay in the United States. You should file an asylum application only if you have genuinely suffered or fear persecution in your country on account of at least one of five grounds: your race, religion, nationality, membership in a particular social group, or political opinion.
In fact, someone who files a claim that is found to be “frivolous,” that is, deliberately fabricated, becomes permanently eligible for a U.S. green card on any basis, per Section 208(d)(6) of the Immigration and Nationality Act.
If the U.S. Asylum Office does not grant your request for asylum, it will, unless you have some other lawful immigration status in the United States, refer you to an Immigration Judge for an individual hearing. Once in immigration court, you are at risk for being removed (deported) from the United States. This would not happen immediately, since the hearing and appeals process typically take months or years, but you could eventually be sent home.
If you have, in fact, been persecuted or fear persecution, then of course you might have good reasons to apply for asylum. In fact, it could ultimately be better than applying through your a family member, because you can win asylum even if you entered the United States without inspection.
Family-visa applicants who entered the U.S. unlawfully and have no existing immigration status, other than those classified as "immediate relatives" (the spouse, parents, or minor unmarried children of a U.S. citizen), can NOT apply for a green card without leaving the United States to attend an interview at an overseas consulate. In other words, they are most likely not eligible to "adjust status," or apply for a green card within the United States.
And it could be a long wait, if no visa number (based on the petition filed by your family member) is immediately available to you; in other words, if your Priority Date is not current. Long waits are common in some categories of the family visa system.
Depending on how much time you have been in the United States without legal status, however, leaving the U.S. for your consular interview might well bar you from returning, for either three or ten years. With a grant of asylum, however, you could simply apply from a green card in the United States one year after approval.
If you decide to file an asylum claim, act quickly. You will need to submit your I-589 application within one year of your most recent entry into the United States unless there are exceptional or extraordinary circumstances in your case. (See Can I Still Apply for Asylum After the One-Year Filing Deadline? for details.)
Strategic decisions like yours are often easier when you consult with an experienced immigration attorney. The attorney can sit with you and evaluate your potential claim for asylum and explain all the possibilities in detail, and prepare any paperwork and legal arguments.
]]>U.S. asylum offices are not authorized to interview people who entered the United States as crewmembers, specifically if they arrived at the United States aboard a vessel and:
A crewmember who enters the United States in any other way can apply for asylum with the asylum office. That includes someone who enters the United States without formal inspection by U.S. immigration authorities. So, for example, a crewperson who secretly left the ship and managed to enter the United States should be able to apply for asylum with the asylum office. Since the officer will probably want to see the person's passport and crewmember book in this situation, it is important to detail your entry, so as to demonstrate that you entered without inspection.
Crewmembers are one of a small group of people who are entitled to special, limited immigration court hearings before an immigration judge. For a list of those groups, look at 8 C.F.R. § 208.2(c)(1).
The issue here is that you wouldn't be able to have your asylum application heard first by the U.S. Asylum Office, in a non-adversarial proceeding. Instead, upon submitting an application or presenting yourself to U.S. immigration authorities, or requesting asylum from immigration authorities who visit your boat (assuming you can convince them you have a credible fear of persecution or torture in your home country), deportation (removal) proceedings will immediately be started against you. Your case will need to be presented before an immigration judge, and an attorney for the U.S. government will (in all likelihood) argue that you should be deported.
Also, there's a good chance you will be kept in immigration detention in the meantime; or else released with an electronic monitoring device, such as an ankle bracelet, and ordered to stay home within certain curfew hours.
If you arrived in the United States as a crewmember, it would be an excellent idea to consult an experienced immigration attorney for a full analysis of your legal situation as soon as possible. The attorney can assist in preparing your application and can appear with you before the immigration judge.
]]>When you complete the Form I-589 application for asylum, it will ask you whether you have ever traveled through or resided in another country (besides the one where you were persecuted, and from which you are requesting protection) before coming to the United States. It will also ask whether you've ever applied for residence or asylum in any other country besides the United States.
The reason for these questions goes back to the firm-resettlement bar. But what does the legal term "firmly resettled" really mean? Many people pass through other countries when fleeing their own, and might even stay there awhile before entering the United States.
Simply passing through another country on your way to the U.S. is not enough to warrant a refusal of asylum; nor spending longer there, if it didn't lead to any legal right to remain.
USCIS and the Department of Homeland Security (DHS) are primarily interested in whether you could have applied for asylum or other immigration status in the third country or whether you have a right to live there now, perhaps because of a previous asylum or other immigration application.
Only if you have or were offered some type of permanent status while in a country you spent time in before arriving in the U.S. (such as citizenship, or the equivalent of permanent residence or a green card, or some other status that allows an indefinite stay) and you refused it will you be barred from receiving asylum in the United States. If you did not apply for asylum or any status in countries where you temporarily stayed, the immigration judge or asylum officer reviewing your case should not find that you were firmly resettled there. (Some applicants have attempted to lie about this, pretending they weren't offered the right to live in the country, but the U.S. government routinely checks with the home government on such matters.)
You might explain to the judge or asylum officer that your plan was always to come to the United States, and that you stayed in other countries for only as long as you had to, until you could continue to your final destination. The longer someone’s stay, the more likely the asylum officer or immigration judge is to question whether they did, in fact, receive some sort of status there. Unfortunately, the fact that your long stay was due to U.S. border restrictions (as has been the case for many asylum seekers who got stuck in Mexico) will not help your case.
It would also help if you did not have any significant ties to the countries in which you passed through, such as property, employment, or family members with permanent status living there. (See 8 C.F.R. Section 208.15(a).)
Be prepared to explain why you did not seek refuge or other status in the countries where you spent time, especially if you have those types of ties to the country.
If you applied for asylum in another country but your application was denied, the U.S. government will want to know why you didn’t qualify. It might, after all, be due to information that makes you similarly ineligible in the United States.
If your asylum request was approved, or if you received a realistic offer of permanent residence by some other means, you will likely be required to return to that country.
If you have a pending asylum case in a third country and are still awaiting a final decision, you will need to provide details of that request to either USCIS (if submitting an affirmative application) or DHS (if applying in Immigration Court). Your application for U.S. asylum will likely be placed on hold until you receive a final determination on your earlier asylum request from the other country.
If it is eventually established that you have a right to live in another country, your U.S. asylum application will in all likelihood be denied. The fact that you might not wish to live in that country will not be taken into account, as was spelled out in a 2020 case from the Board of Immigration Appeals. (See Matter of K-S-E-, 27 I&N Dec. 818 (B.I.A. 2020).)
Oddly enough, even living someplace using falsified paperwork can be enough for the U.S. government to find that you were firmly resettled there, if that country's government hasn't noticed the problem. (See Matter of D-X and Y-Z, 25 I&N Dec. 664 (B.I.A. 2012).)
If you are worried about proving that you were not firmly resettled in another country, definitely consult with an experienced immigration attorney. Also see Applying for U.S. Asylum: How Much Will It Cost?.
]]>These criminal bars to asylum are mandatory. (See I.N.A. § 208(b)(2)(A) or 8 U.S.C. § 1158(b)(2)(A).) That is, even if you meet the legal definition of a “refugee,” you will not be granted asylum once an Asylum Officer or an Immigration Judge finds that a criminal bar applies to you. Also, if you are applying “derivatively” through your spouse or parent who obtains asylum, but a criminal bar applies to you, you will not be eligible for asylum.
When you apply for asylum, the U.S. government will seek information about your criminal history. Form I-589, the application for asylum, requires you to answer questions about your criminal record. Make sure to answer them truthfully and completely, and explain in detail the reasons for your criminal record. A lie on your asylum application can damage your credibility (believability) and result in nothing you say about what happened to you in the past or your fear of persecution being believed.
For more details about filling out Form I-589, see How to Prepare an Affirmative Asylum Application.
Also, the U.S. government will fingerprint and run a full criminal background check on you—it typically includes your record in and outside the United States.
A conviction of a “particularly serious crime” in the U.S. will bar you from obtaining asylum. For purposes of this bar, you will be considered to have been “convicted” only if:
“Particularly serious crimes” include:
Regulations originally scheduled to take effect in late 2020 made additions to the above list, but a court subsequently put them on temporary hold, in the case of Pangea Legal Services v. DHS, 11/19/20). If the new rules survive this litigation, be prepared for them to specify that particularly serious crimes include any felony under federal or state law; alien smuggling or harboring; illegal reentry into the U.S.; any crime involving gang activity; driving while intoxicated (DUI or DWI); a domestic violence offense (even without a conviction, if an adjudicator finds the person to have engaged in these acts); a misdemeanor related to using false identification; unlawful receipt of public benefits; and possession or trafficking of a controlled substance (other than a single conviction of possession of 30 grams of marijuana for personal use).
A conviction of a “particularly serious crime” outside the United States will bar you from obtaining asylum. (See the discussion above.)
You also cannot obtain asylum if you had committed some other crimes outside of the U.S., such as persecuting others or committing a serious nonpolitical crime in your country. Note that you can be barred from asylum even if you were not actually convicted of the following crimes:
You will not be eligible for asylum if you ordered, encouraged, or helped in any way in hurting or threatening (that is, “persecuting”) others because of their “protected ground” (race, religion, nationality, membership in a particular social group, or political opinion). That is, even if you had been persecuted yourself because of a protected ground, you cannot meet the definition of a “refugee” if you also persecuted others.
There is some uncertainty whether the persecutor bar applies even if you were forced to be involved in the persecution of others. If the U.S. government argues that this bar applies to you, you can improve your chances of obtaining asylum by showing that you did not know about the full scope of activities of the people who were forcing you to help them, and that your involvement with them was in no way related to their persecution of others.
You might not be granted asylum if there is good reason to believe that you had committed a serious nonpolitical crime outside the U.S. before arriving here. A "serious nonpolitical crime” is defined as follows:
Even if you committed a crime for purely political reasons, it might bar your asylum claim if your actions were disproportionate in comparison to your objectives (that is, if your acts were atrocious or barbaric).
There is no requirement that you were actually convicted of a serious non-political crime. You can be barred from asylum eligibility if an Asylum Officer or an Immigration Judge finds “probable cause” (that is, reasonable belief) that you had committed such a crime. Also, you need not have personally carried out the crime: If you provided support to others committing a crime, you might be barred from asylum.
Many asylum applicants had been arrested, convicted, and spent time in jail in their home countries simply because their governments were persecuting them. That forms a basis for many asylum claims. If you were convicted of a crime in your home country, and that conviction is part of the persecution you had suffered, be sure to explain this in great detail in your asylum application.
You should attach a detailed declaration in which you clearly state the circumstances of your conviction, and explain how you were convicted purely on account of a “protected ground.” This is something a lawyer can help you with.
If there are reasons to believe that you are a danger to the security of the U.S., you will not be granted asylum. There is little guidance on what facts can bring a person under this bar, and it often overlaps with the terrorist bar.
You will not be granted asylum if the terrorist bar applies to you; that is, if any of the following are true:
The U.S. government publishes a list of groups that it considers to be terrorist organizations. In addition, Asylum Officers and Immigration Judges can find other groups to be terrorists.
There is a lot of controversy about how broadly “terrorist activity” and “terrorism” are defined. To reduce your chances of being subject to the terrorist bar, you should show that you did not know that a group you were helping was involved in terrorist activities, or that you did not know that persons you were helping were members of such a group. Also, you might want to show that your “help” to them was indirect or very insignificant, and in no way related to their terrorist activities. Showing that you were forced to help them might also be helpful.
Because the law in this area is unclear, you should consult an attorney if you think that this bar might apply to you.
In addition to asylum, remember to apply for the following forms of relief:
Even if you are barred from obtaining asylum because of a criminal record, you might be eligible for those two forms of protection. Withholding of removal is barred by an aggravated felony conviction only if its total sentence of imprisonment was at least five years. Withholding is also probably barred by an aggravated felony conviction involving drug trafficking.
Criminal convictions do not entirely bar eligibility for CAT protection. However, if you committed a particularly serious crime, you might receive only "deferral of removal," which is considered temporary, rather than the longer-term "withholding of removal."
A criminal conviction—either in the U.S. or in another country—could have additional negative effects on your eligibility for immigration benefits beyond your asylum claim. It might, for example, make you ineligible to re-enter the U.S. after travel, to obtain a green card, or to receive U.S. citizenship. You could be deported or removed at various stages of your immigration proceedings if you have a criminal record.
A conviction of an aggravated felony will also bar voluntary departure (which allows you to leave the U.S. voluntarily, at your own expense instead of being removed). Voluntary departure has great advantages over removal, if you have no other likely defense: If you are deported, you will not be allowed to enter the U.S. for five or ten years (depending on the reason for your removal). If you are deported a second time, you will be not be allowed to enter for 20 years. (If you are deported for an aggravated felony, you will probably never be allowed to re-enter.) Voluntary departure does not result in those prohibitions. If you have no defense to removal, try to be removed based on your unlawful presence instead of based on your criminal record, and seek voluntary departure.
Once the U.S. government presents evidence that one of the criminal bars applies to you, you will then have to show by a “preponderance of the evidence” that it does not: That is, you will have to prove that it is more than 50% likely that the bar does not apply. Therefore, you must provide information during your asylum interview or when you are before an Immigration Judge that helps to explain your criminal record.
For these and all the reasons mentioned above, if you have a criminal record, you really should consult an experienced attorney. (as well as a criminal attorney). If possible, ask the criminal court to vacate (erase) your conviction or lower your sentence, assuming you have good reasons for doing so (for example, if you had pleaded guilty without realizing that it would lead to your deportation). If your criminal case is ongoing while you are seeking immigration benefits, make sure to file a motion to continue your immigration case until after your criminal trial is completed.
]]>Let's take a closer look at each of these various bars to asylum or refugee status. (Also see the relevant federal law at I.N.A. 208(a)(2).)
The U.S. government will deny an application for refugee or asylum status if the person has ordered, incited, assisted, or participated in the persecution of any other person because of that person's race, religion, nationality, membership in a particular social group, or political opinion.
For example, this rule has been used to deny refugee status to military or police officials who assisted in persecuting minority or guerrilla groups—even though these people might realistically fear for their life because members of these groups are seeking revenge against them. But U.S. and international law are not meant to protect persecutors, torturers, and their like.
Crimes and security or safety concerns are major bars to asylum seekers and refugee applicants.
Any applicant who has been convicted of a "particularly serious crime" and is therefore a danger to the community of the United States will not be granted asylum or refugee status.
For starters, all "aggravated felonies" are considered particularly serious crimes—and U.S. immigration laws strictly define what is an aggravated felony, such that some crimes that might have been called misdemeanors at the time of prosecution will be looked upon as aggravated felonies.
In addition, new rules put forth under the Trump Administration specified other types of criminal activity that are considered serious enough to bar a non-citizen from seeking asylum. (In the past, this matter was considered case-by-case.) Various nonprofits sued to block the new rules, and a court then put them on hold while awaiting the outcome of the litigation. (See Pangea Legal Services et al., v. DHS, et al., 11/19/20.) If the rules eventually survive the lawsuits (which were ongoing as of mid-2023), the new list will include:
Also, no person who has been convicted of a serious nonpolitical crime in a country outside the United States will be granted asylum or refugee status. However, people whose crimes were not serious or political in nature might still qualify. If, for example, you were arrested for taking part in a protest or uprising, this could actually help, not hurt your asylum claim—but consult with an experienced immigration attorney before you apply.
As for safety security violations, no person who has been involved in terrorist activity—or who can reasonably be regarded as a threat to U.S. security—will be granted asylum or refugee status. This bar was also expanded under the Trump Administration. A final rule issued in December, 2020 says that applicants can be found ineligible not only for asylum, but for withholding of removal, based on emergency public health concerns generated by a communicable disease.
People who have fled their home country, but then become "firmly resettled" in another country will also be denied asylum or refugee status. This means that the person has applied for protection in the U.S. but has also:
A person who has previously applied for asylum in the United States is not eligible to do so again if their previous asylum application was denied. This rule does not apply, however, if you are applying for asylum again because the situation in your home country has changed so much that it affects your eligibility for asylum.
A person who applies for asylum more than one year after entering the United States is barred from receiving asylum, whether they apply on their own ("affirmatively") or in removal (deportation) proceedings in immigration court.
Exceptions to this rule apply, however. If you are applying for asylum because the situation in your home country has changed so much that it affects your eligibility for asylum or if “extraordinary circumstances” prevented you from filing within one year, then you might qualify for such an exception. For more about this bar, take a look at Can I Still Apply for Asylum After the One-Year Filing Deadline?
A person who travels through a “safe third country” must apply for asylum in that country before applying for asylum in the United States. Despite its name, “safe third country" actually means a country that the United States has a formal agreement with (called a “treaty”), and that has complete asylum procedures, and where you would not be at risk of harm. In the past, the only country that met these qualifications was Canada.
However, the Trump administration expanded this, by creating a new regulation according to which travel through any third country that offered protection would be a bar to asylum if the person didn't apply for it and receive a denial. This particularly affected people who passed through Mexico on the way to the United States. The new regulation gave rise to multiple lawsuits and court injunctions, but then the Biden Administration introduced another new set of regulations that has much the same effect. Lawsuits are underway as of mid-2023. Speak with an attorney for the latest.
For more information on U.S. immigration laws, including asylum and refugee status, see articles on Asylum & Refugee Status and the book U.S. Immigration Made Easy, by Ilona Bray (Nolo).
]]>By the same token, any indication that the asylum applicant is lying or fabricating even minor portions of their claim puts the whole story into doubt, and greatly increases the chance of the U.S. government denying their claim.
Fraud is taken very seriously by the asylum decision makers, namely the officials at U.S. Citizenship and Immigration Services (USCIS) and (where the applicant is already in removal proceedings) the Executive Office of Immigration Review (EOIR). At the least, a fraud finding by USCIS will result in a denial of the person's affirmative asylum application, which (unless the person has some other right to remain in the U.S.) will automatically put the applicant into removal (deportation) proceedings before an Immigration Judge at the EOIR.
Also, if any material element of someone’s asylum claim appears to have been knowingly, deliberately fabricated, and the person can’t account for the related discrepancies or implausibility, that person’s claim may be found frivolous. (See 8 C.F.R. § 1208.20 and Section 208(d)(6) of the Immigration and Nationality Act or I.N.A.) After such a finding, the person will be permanently ineligible for any U.S. immigration benefits, whether asylum, a visa, or something else.
Fortunately, not everyone who is denied asylum is considered to have committed fraud. Some applicants might tell a truthful story, but one that simply fails to meet the qualifications for asylum. Or, some applicants’ stories might contain minor discrepancies that don’t appear to be outright or deliberate lies, but that undercut their overall credibility and perhaps lead to a denial.
If USCIS denies an applicant’s asylum request, but the person has some other valid status in the U.S. to fall back on, such as a student or work visa, it's possible the person will be able to keep that status and remain in the United States.
The USCIS officer reviewing the case is, however, expected to refer any instances of fraud to Immigration and Customs Enforcement (ICE). That agency will then follow up and investigate the matter further. If it believes the applicant to have committed fraud, it can place the person into removal proceedings and strip them of their alternative immigration status.
USCIS’s first opportunity to ferret out fraud usually occurs when reviewing the Form I-589 and supporting documents that an applicant submits in order to request asylum. The reviewing officer will look for such things as:
These aren’t the only ways in which USCIS might spot fraud, of course, but they are ones that USCIS will consciously and systematically look for.
Everyone who applies for asylum in the United States must appear for an in-person interview before an officer of USCIS; and if the officer doesn’t grant asylum, again before an Immigration Judge. The officer or judge will listen, ask questions, and seek to hear the person’s complete story before making a decision on the case.
Again, consistency, plausibility, and the basic coherence of the story are key. But the decision maker may also look at the person’s behavior for signs of fraud, watching for such things as:
If you’re planning to apply for asylum in the U.S., stay away from any lawyer, notario, or other person who advises you to commit fraud in the course of doing so. (Also see Applying for U.S. Asylum: How Much Will It Cost?.)
But do make sure you understand the grounds for asylum eligibility, and do your best to submit and document a claim that will meet the legal requirements.
An experienced immigration attorney is the best resource for help with the process of preparing a convincing asylum case without feeling the need to lie. Many nonprofit organizations will help you find free or low-cost legal help with an asylum case.
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