As a result of the administration’s attacks on asylum, an increasing number of individuals are ineligible for asylum as a result of newly created asylum bars.  While some of the bars only apply to recently arrived asylum seekers, other proposed bars would encompass much broader groups of asylum seekers.  Many of the proposed and implemented bars are discussed here. The most recently announced notice of proposed rulemaking, dramatically expanding the bars to asylum, can be found here. 

Individuals who are ineligible for asylum due to an asylum bar are still eligible for two other, lesser forms of protection-based relief: withholding of removal and relief under the Convention Against Torture (CAT).  More information about these forms of relief can be found in NIJC’s asylum manual. 

While these two forms of relief can prevent an individual’s removal to a country where she fears persecution or torture, unlike asylum, these two forms of relief do not provide benefits for derivatives.  This means that all derivatives must establish their own eligibility for relief and have their own, independent application on file with the asylum office or immigration court.  For example, if a mother flees to the United States with her two children and is subject to the asylum transit ban, she is only eligible for withholding of removal and CAT relief.  If the judge finds her eligible for withholding of removal and grants her that protection, her children will only be protected if the judge also deems them eligible for protection based on their own applications for relief.

Due to the increasing number of bars the administration is attempting to place on asylum eligibility, it is critical that attorneys ensure they are preserving all forms of relief for their clients, even derivative spouses and children.  At present, NIJC strongly recommends the following steps in all asylum cases:

For attorneys representing asylum seekers in removal proceedings:   

1. File a separate I-589 asylum application for all immediate family members (legal spouses and unmarried children under age 21) in removal proceedings. 
2. If no one in the family has filed for asylum yet, all the applications should be filed at the same time, prior to the family’s one-year filing deadline.  If the principal applicant has already filed for asylum, file independent applications for the other family members as soon as possible, but no later than the pre-merits hearing filing deadline.
3. If you are concerned about whether a derivative family member has an independent claim for relief, please contact your NIJC point-of-contact.

For attorneys representing asylum seekers before the asylum office:

1. Plan to file a separate I-589 asylum application for all immediate family members (legal spouses and unmarried children under age 21) not in removal proceedings.
2. If no one in the family has filed for asylum yet, contact NIJC well in advance of the filing deadline to discuss the filing procedure, which can be logistically complex before USCIS. The derivative family member will need to submit the independent application to the Asylum Vetting Center in Georgia. For more information about this process, please click here. **New process updated as of December 15, 2020. 
3. If you are concerned about whether a derivative family member has an independent claim for relief, please contact your NIJC point-of-contact.