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  • Article: "Mandatory Bars To Asylum" Training Module For Asylum Officers Released After A Freedom Of Information Request By David L. Cleveland

    “Mandatory Bars To Asylum” Training Module For Asylum Officers Released After A Freedom Of Information Request

    by


    A 37-page Asylum Officer Training Module on “Mandatory Bars to Asylum,” dated May 9, 2013, was recently released after a FOIA request by Catholic Charities of Washington DC. A copy is available at the Louise Trauma Center website: www.louisetrauma.com. It is also AILA Doc. 1710 -2563.

    There are six statutory grounds that render an applicant ineligible for asylum, even if the applicant is a “refugee.” [at page 7]:

    -persecution of others

    -conviction of a particularly serious crime

    -commission of a serious nonpolitical crime outside United States

    -danger to security of U.S.

    -participation in terrorist activities

    -firm resettlement

    Additional grounds are stated at pages 7-8:

    -if applicant could be removed to a Safe Third Country

    -previous denial of asylum by an IJ or the BIA, unless there are changed circumstances

    [a previous denial by an asylum officer is not a bar]

    ONE YEAR DEADLINE

    -filing more than one year after arrival [does not apply to UACs]

    An exception to the one-year deadline is “changed circumstances,” such as an increase in hostilities against ethnic Albanians in Kosovo. Page 14.

    Another exception is “extraordinary circumstances.” For example, a Chinese applicant arrived in the U.S. in August 1998. He was seriously injured in a factory accident that required him to be hospitalized until September 1999. If he files within a “reasonable time” after he recovers from the accident, he is not barred. Page 15.

    “Filing within three months of the occurrence of the changed circumstance generally would be considered a reasonable period of time.” Page 15.

    PERSECUTION OF OTHERS Page 16

    An applicant is barred, even if he acted “under coercion or duress.” Page 16. However, the BIA was urged to reconsider this position by the U.S. Supreme Court. So far, the BIA has yet to issue a decision.

    CONVICTION OF A PARTICULARLY SERIOUS CRIME Page 16

    “A single conviction of a misdemeanor normally is not a particularly serious crime.” Page 21. “Crimes of violence are normally particularly serious crimes.” Page 21.

    COMMISSION OF SERIOUS NONPOLITICAL CRIME Page 23

    “Even if the crime was committed out of genuine political motives, it should be considered a serious nonpolitical crime if the act is grossly out of proportion to the political objective or if it is of an atrocious or barbarous nature.” Page 24.

    “There is no requirement that the serious nonpolitical crime resulted in a conviction. The adjudicator needs to find probable cause to believe that the crime was committed.” Page 24, emphasis in original.

    TERRORISTS Page 26

    A person who received “military-type” training from, or on behalf of a terrorist organization is barred from asylum. Page 29.

    FIRM RESETTLEMENT Page 29

    8 C.F.R. section 208.15 provides that a person who received “an offer of permanent resident status” is firmly resettled. However, “indirect evidence,” such as living for a long time in the country, can be sufficient. Page 31.

    If a dependent was firmly resettled in a third country, “the dependent is not barred from receiving a derivative grant of asylum if the principal is granted.” Page 34.

    Comments by the author

    ONE YEAR DEADLINE: An applicant with “post-traumatic stress disorder,” who was

    debilitated with fear and anxiety, may be excused for missing the one-year deadline.

    Mukamusoni v. Ashcroft, 390 F.3d 110, 117 (1st Cir. 2004). See also: Cleveland, Ella F. “PTSD and the One-Year Deadline for Asylum Applications,” December 12, 2016 [available at www.louisetrauma.weebly.com/rape]

    SERIOUS NONPOLITICAL CRIME

    “Serious reasons for believing” means “probable cause.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1188 (9th Cir. 2016).

    TERRORIST ACTIVITY

    The Terrorism-Related Inadmissibility Grounds (TRIG) are another mandatory bar against asylum applicants who have engaged in “terrorist activity.” This ground is extremely broad and includes those who are deemed to have given “material support” to a “terrorist organization.” Both “material support” and “terrorist organization” are defined very broadly. Terrorist organizations include not only those officially designated as such, but also any “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in [terrorist activities as defined by the INA].”

    Being a part-time interpreter is providing material support. Jabateh v. Lynch, 845 F.3d 332, 340 (7th Cir. 2017). So is giving $37 and cooking. Annachamy v. Holder, 686 F.3d 729 (9th Cir. 2012). There is no implied exception for providing material support under duress. Matter of M-H-Z-, 26 I&N Dec. 757, 761 (BIA 2016).

    FIRM RESETTLEMENT

    “The United States offers asylum to refugees not to provide them with a broader choice of safe homelands, but rather, to protect those arrivals with nowhere else to turn.”[1] Saul v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006).

    Ms. Naizghi, from Eritrea, lived in Italy for 14 years. She renewed her work permit continuously, the government gave her medical care, and she was able to travel. Asylum was denied. Naizghi v. Lynch, 623 Fed. Appx. 53 (4th Cir. 2015).



    [1] Saul v. Gonzales, 437 F.3d 229, 233 (2d Cir. 2006).

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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