Unlawful Presence and Asylum Seekers

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRAIRA”) added new bars to admissibility under INA 212(a)(9)(B). In short, any alien who is unlawfully present in the United States for a period of at least 180 days after April 1, 1997 is subject to a three-year bar should they leave the U.S. In addition, any alien who is unlawfully present in the United States for a period of one year or more after April 1, 1997 is subject to a ten-year bar should they leave the U.S. The 3/10-year bar attaches to an unlawful alien only after he/she actually leaves the U.S. after having accrued a minimum unlawful presence of 180 days. This bar applies even if an alien becomes eligible for a Green Card and leaves the U.S. in order to do consular processing in the hopes of re-entering the U.S. with an immigrant visa. Unlawful presence will serve as a bar to re-entering the U.S. in either an immigrant or temporary status. An alien may be questioned about unlawful presence at a U.S. Consulate, Port of Entry, or at an Adjustment of Status interview in the U.S.

There are several exceptions to the 3/10-year bar so that an alien who is otherwise subject to either bar may nevertheless re-enter the U.S. without having to wait outside the U.S. for the requisite 3 or 10 years. One of these exceptions is for bona fide asylum applicants. The INS has recently issued a series of policy memos interpreting how the bona fide asylum applicant exception is to be applied, and instructs U.S. Consulates, Ports of Entry, and Adjustment of Status officers accordingly.

The term “Bona Fide” asylum application is to be interpreted broadly. An application having any arguable basis in law or fact is considered bona fide, even where the application is ultimately denied by the INS, the Immigration Court, the Board of Immigration Appeals, or the Federal Court. Even where an asylum application is abandoned by the applicant before a decision is reached, the application may still be deemed bona fide. However, just because an applicant is able to obtain a travel document based upon an asylum application does not, in and of itself, suggest a bona fide case. Any unlawful employment during the pendency period of any such asylum application will disqualify the alien from the asylee application.

If the determination of the 3/10-year bar turns solely on whether or not the alien qualifies under the bona fide asylum exception, the case will be referred to the Headquarters Office of Asylum to determine if the alien did, in fact, have a bona fide application for asylum pending. The Office of Headquarters Asylum will review the specific facts of the case in question and respond to the INS or Consular officer with determination of bona fides or that the INS has no record of an asylum application.

To determine whether or not an alien qualifies for the bona fide asylum applicant exception to the 3/10-year unlawful presence bar, consult an experienced immigration attorney to perform an in-depth analysis of your case.