Bars to Asylum

29 I&N Dec. 392 (BIA 2026) · 2026

The serious nonpolitical crime bar to asylum and withholding of removal does not include a duress exception.

Companion in principle to Negusie (persecutor bar). Neither the particularly serious crime bar nor the serious nonpolitical crime bar yields to claims of duress or compulsion.

29 I&N Dec. 717 (BIA 2026) · 2026

(1) Conviction for possession with intent to deliver a controlled substance under Pennsylvania law is a particularly serious crime, barring both asylum and withholding. (2) Respondent did not establish CAT eligibility where past mistreatment in Jamaica based on sexual orientation was by private individuals and she did not show a public official would acquiesce to future torture.

Drug trafficking convictions are routinely found to be particularly serious crimes. CAT claims based on private actors require government acquiescence — general societal homophobia without state involvement is insufficient.

29 I&N Dec. 708 (BIA 2026) · 2026

The fact that a respondent is granted withholding of removal is an important consideration in whether the respondent may be denied asylum as a matter of discretion based on weighing favorable and adverse factors. The mitigating impact a grant of withholding has on the risk of future persecution must be considered. Matter of Kasinga and Matter of H- distinguished.

An IJ who grants withholding must account for that protection when exercising discretion to deny asylum — the risk of persecution is reduced, which weighs in favor of asylum.

29 I&N Dec. 610 (BIA 2026) · 2026

The words 'arrival' and 'arrived' in the serious nonpolitical crime bar provisions at INA §§ 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) refer to the alien's most recent arrival in the United States.

Resolves a circuit split on whether the crime's timing is measured from first or most recent entry. The most recent arrival controls.