Bars to Receiving Asylum or Refugee Status

Asylum and refugee status are special legal protections under U.S. immigration law, available to people who have left their home country for their own safety and are afraid to return. But these protections aren't automatic: People seeking asylum or refugee status must apply for it and convince the U.S. government of their need. Some people simply won't be able to show the U.S. government that they have a real fear of persecution. But there are others who really have been persecuted—or have a good reason to fear future persecution—who must be denied asylum anyway under established U.S. law.

People who will be barred from obtaining asylum or refugee status include those who:

• have assisted in the persecution of others
• are threats to U.S. safety or security
• are already "firmly resettled" in another country
• have previously applied for and been denied asylum
• applied for asylum more than one year after entering the United States, or
• have traveled through a "safe third country."

Let's take a closer look at these categories. (Also see I.N.A. 208(a)(2).)

Applicants Who Have Assisted in the Persecution of Others

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.

Applicants Who Have Committed Certain Crimes or Pose Threats to U.S. Safety or Security

Crimes and security or safety concerns are major bars to asylum seekers.

Any applicant who has been convicted of a "particularly serious crime" and is therefore a danger to the community of the United States will 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 originally scheduled to take effect in November of 2020 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 nonprofit sued to block the new rules, and a court then put them on temporary 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, the new list will 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)

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, however. 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. This is more likely to be applied to broad swathes of applicants, however, namely those seeking to enter the U.S. at its southern border.

Applicants Who Have Firmly Resettled in Another Country

A person who has fled his or her home country, but then becomes "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:

• been granted permanent residency or citizenship by another country
• made permanent housing arrangements and traveled in and out of the adopted country, or
• achieved economic independence because of education, employment, or the exercise of professional or business affairs in the adopted country.

Applicants Who Have Previously Applied for and Been Denied Asylum

A person who has previously applied for asylum 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.

Applicants Who Apply for Asylum More Than One Year After Entering the United States

A person who applies for asylum more than one year after entering the United States is barred from receiving asylum.

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 Can I Still Apply for Asylum After the One-Year Filing Deadline?

Applicants Who Have Traveled Through a "Safe Third Country"

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 attempted to expand this. It created 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 would particularly affect people who passed through Mexico on the way to the United States.

However, the new regulation gave rise to multiple lawsuits and court injunctions, with the result that it was not in effect as of early 2021. Speak with an attorney for the latest.

Additional Resources

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).