Ineligibility to Apply for Asylum
An asylum-seeker is ineligible to apply for asylum under section 208(a)(2) of the INA if he or she:
- Failed to file an asylum application (Form I-589)
within one year of his or her last arrival in the United States or April 1,
1997, whichever is later
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Exception to the I-Year Filing Deadline:
The applicant demonstrates either the existence of changed
circumstances* which materially affect the applicant's eligibility for asylum
or extraordinary circumstances** relating to the delay in filing. The applicant needs to have filed the
application within a reasonable time given the exception. See 8 CFR § 208.4.
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- Previously applied for asylum and was denied by an
Immigration Judge or the Board of Immigration Appeals
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Exception to Previous Denials of Asylum:
The applicant establishes the existence of changed circumstances* which materially affect his or her
eligibility for asylum.
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- Can be removed to a safe third country pursuant to a
bilateral or multilateral agreement
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USCIS published regulations implementing a bilateral agreement between the United States and Canada on November 29, 2004. Unless asylum-seekers arriving at a U.S./Canada land border port of entry or transiting through the United States while being removed from Canada fall within an exception to the agreement, they will be returned to Canada to seek protection there. |
*Changed Circumstances: 8 CFR § 208.4(a)(4)
These may include but are not limited to the following:
- changes
in conditions in the applicant's country of nationality or, if the applicant is
stateless, country of last habitual residence;
- changes
in the applicant's circumstances that materially affect the applicant's
eligibility for asylum, including changes in applicable U.S. law and activities
the applicant becomes involved in outside the country of feared persecution
that place the applicant at risk; or
- in
the case of an alien who had previously been included as a dependent in another
alien's pending asylum application, the loss of the spousal or parent-child
relationship to the principal applicant through marriage, divorce, death, or
attainment of age 21.
**Extraordinary Circumstances: 8 CFR § 208.4(a)(5)
These may include but are not limited to the following:
- serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival;
- legal disability (e.g., the applicant was an unaccompanied minor or suffered from a
mental impairment) during the 1-year period after arrival;
- ineffective assistance of counsel, provided that:
- the applicant files an affidavit setting forth in detail the agreement that was
entered into with counsel with respect to the actions to be taken and what
representations counsel did or did not make to the respondent in this regard;
- the
counsel whose integrity or competence is being impugned has been informed of
the allegations leveled against him or her and given an opportunity to respond;
and
- the
applicant indicates whether a complaint has been filed with appropriate
disciplinary authorities with respect to any violation of counsel's ethical or
legal responsibilities, and if not, why not;
- the
applicant maintained Temporary Protected Status, lawful immigrant or
nonimmigrant status, or was given parole, until a reasonable period before the
filing of the asylum application;
- the
applicant filed an asylum application prior to the expiration of the 1-year
deadline, but that application was rejected by the Service as not properly
filed, was returned to the applicant for corrections, and was refiled within a
reasonable period thereafter; or
- the
death or serious illness or incapacity of the applicant's legal representative
or a member of the applicant's immediate family.
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