We mentioned in a previous post that if you file a bona fide application for asylum, that application while pending will stop the accumulation of unlawful presence time in the United States. Which raises the question—what does it mean for an asylum application to be “bona fide”?
A “bona fide” application for asylum means that application has a reasonably arguable basis in fact or law, and is not frivolous. This interpretation is not in the text of the U.S. immigration statutes but rather comes from the Department of Homeland Security’s (DHS) interpretation. As the USCIS has explained:
DHS has interpreted the phrase “bona fide asylum application” to mean a properly filed asylum application that has a reasonably arguable basis in fact or law, and is not frivolous. If this is the case, unlawful presence does not accrue while the application is pending unless the alien engages in unauthorized employment. DHS considers the application for asylum to be pending during any administrative or judicial review (including review in Federal court).
See Memorandum from Donald Neufeld, Act. Assoc. Dir., Dom. Ops., to Field Leadership, Consolidation of Guidance Concerning Unlawful Presence for Purposes ofSections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act at 29 (May 6, 2009).
That same memorandum also explained that an application for asylum can still be bona fide even if it is eventually denied, or if you eventually abandon the application:
A denial of an asylum claim is not determinative of whether the claim was bona fide for purposes of section 212(a)(9)(B)(iii)(ll) of the Act. Similarly, the abandonment of an application for asylum does not mean that the application was not bona fide. The Asylum Division within the Refugee, Asylum, and International Operations Directorate at USCIS’ HQ can provide guidance regarding whether a filing of an asylum application can be deemed “bona fide” based on the specific facts of the case and should be contacted, if there are any questions as to the determination.
Id.
A more recent USCIS order on an applicant’s appeal reiterated the findings above:
Under the current policy, Service interpreted the phrase “bona fide asylum application” to mean a properly filed asylum application that has a reasonably arguable basis in fact or law, and is not frivolous. A denial of an asylum claim is not determinative of whether the claim was bona fide for purposes of section 212(a)(9)(B)(i)(II) of the Act. Similarly, the abandonment of an application for asylum does not mean that the application was not bona fide.
USCIS Administrative Appeals Office, Application for Waiver of Grounds of Inadmissibility under Sections 212(i) and 212(a)(9)(B)(v) of the Immigration and Nationality Act, 8 U.S.c. §§ 1182(i) and 1182(a)(9)(B)(v) at 5 (May 23, 2012).
Note that since the definition of a bona fide application is based on DHS’s and USCIS’s interpretations, rather than expressed by the text of the Immigration and Nationality Act, the definition may be subject to future policy changes in the executive branch.