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Bars to Asylum

Obstacles to asylees

An otherwise eligible applicant for asylum may be barred from applying for asylum if:

  1. He or she did not file within one year after the date of his or her last arrival in the United States, unless he or she can establish eligibility for one of the exceptions to the one year rule (changed country conditions, change in personal circumstances);
  2. He or she participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion;
  3. He or she has been convicted of an aggravated felony or other particularly serious crime constituting a danger to the community of the United States;
  4. There is a serious reason to believe that he or she has committed a grave nonpolitical crime outside the United States prior to arrival in the United States;
  5. There are reasonable grounds for regarding him or her as a danger to the security of the United States;
  6. He or she is inadmissible or removable as a result of terrorist activities, unless the Attorney General determines that these are not reasonable grounds for regarding the person as a danger to the security of the United States;
  7. He or she firmly resettled in another country prior to arriving in the United States;
  8. The Attorney General determines that there is a safe third country to which he or she may be removed pursuant to a treaty where the person's life or freedom would not be threatened and where he or she would have full access to a full and fair procedure for asylum;
  9. He or she previously filed for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals, unless he or she can demonstrate changed country circumstances which would materially affect his or her eligibility for asylum.

Burden of Proof and Standard of Persuasion

The asylum applicant has the burden of proving eligibility for asylum or withholding and establishing that the grounds for denial do not apply. The precise standard of persuasion for asylum is not clearly set forth in any statute or case. Nevertheless, the cases indicate that an asylum seeker must establish that he has "well founded fear," a "reasonable possibility" of persecution, a "credible subjective evidence" standard-- something less than the preponderance of evidence standard. An applicant for withholding of deportation or withholding must prove his claim by showing a "clear probability" of persecution. A preponderance of evidence standard is required for establishing eligibility for withholding.