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Hastings International and Comparative Law Review

Abstract

Commonly referred to as the "one-year bar to asylum," section 208 (a)(2)(B) of the Immigration and Nationality, 8 U.S.C. § 1158(a)(2)(B) was enacted by Congress as part of the Illegal Immigrant Reform and Immigrant Responsibility Act passed in 1996. The law requires an asylum applicant to apply within one year of arrival in the United States, subject to certain exceptions. Congress' goal in enacting this law was to prevent fraud while ensuring that the United States remained a safe haven for refugees fleeing persecution in their home countries.

Twelve years after the enactment of the one-year bar, CGRS' survey of cases reveals that the implementation of this law has not achieved Congress' aims and instead has the result of returning bona fide refugees to countries where they face imminent threats to life and freedom. Contrary to legislative intent, international obligation, and traditional domestic immigration policy, the one-year bar is currently applied in an inflexible manner that precludes bona fide refugee claims, leads to arbitrary and inequitable results as a matter of policy, wastes precious administrative resources, and does not prevent fraud.

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