Is the United States a Safe Third Country?

Professor Birdsong’s Refugee Law seminar Student, Jason Patrou, wrote a well researched paper on the Safe Third Country Agreement between the United States and Canada concerning asylum applicants.  Jason has given me his permission to post his paper on the blog.  Since most of you do not know that we have a safe third country agreement with Canada, why don’t you read what Jason has written and you will learn something valuable.


 By:  Justin Patrou

May 6, 2010


 The Nazi persecution of Jews throughout Europe was by no means the first persecution by a government of its people, nor was it likely to be the last attempt by a government to persecute those the country governs.  In fact, during World War II, one might say that the United States of America, one of the ally countries fighting Nazi Germany, persecuted a segment of its society when the United States created a series of laws discriminated against Japanese-Americans.[1]  After the travesties of World War II the international community felt compelled to act and ensure that in the future, those who are persecuted by the countries in which they reside would be protected by international law and have the ability to seek refuge in another country without the fear of refoulement.[2] 

The origins of modern refugee law can be found in three international treaties:  the 1951 Convention Relating to the Status of Refugees (“Convention”), the 1967 Protocol Relating to the Status of Refugees (“Protocol”), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”).  The Convention, which was incorporated into the Protocol, expressed that all states should recognize the social and humanitarian nature of refugees and “will do everything within their power to prevent this problem from becoming a cause of tension between States.” 

Under international law, specifically the Protocol which expanded the term of refugees to include those individuals who reside outside of Europe, a refugee is defined as “any person who…[has a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”  As a result of the United States signing the Protocol, which incorporated the Convention, both the United States and Canada are signatories to the major pieces of international refugee law, the Convention (by incorporation), the Protocol and the Convention Against Torture. 

The United States-Canada shared land border has been something of a concern to both countries because refugees had routinely passed through the land border to make an asylum claim in either or both countries.  As a result of this concern, the two countries implemented the U.S.-Canada Smart Border Plan.[3]  Part of that plan was to implement the Safe Third Country Agreement (“STCA”), which addresses the procedure in which the two countries will process refugee claims in a more efficient manner.[4] 

In the United States, the procedural tool which implemented the STCA was §208 of the Immigration and Nationality Act (INA).  Under United States law, specifically §208(a)(2)(A) of the INA, an applicant applying for asylum shall be denied the procedural process available to other refugee claimants if it is found that the applicant can be removed to another country, pursuant to a bilateral or multilateral agreement.[5]  In Part II of this paper I will address the reasons the two countries entered into the STCA and how it affects refugee claims made in the two countries. 

My interest in this agreement began with a case handed down by a Canadian judge who determined that the United States was not a “safe third country,” and as such, it would be illegal for Canada to turn away those who entered its land borders looking to make a refugee claim.[6]  Part III of this paper will address that case, Canadian Council for Refugees v. H.M. The Queen, the three reasons for which the judge determined the United States was not a “safe third country” and the actions the United States can take to ensure that this bilateral agreement does not meet a swift and unceremonious end.[7]  Part IV of this paper will address each concern discussed in Part III and possible solutions for each problem.

 II.         The Safe Third Country Agreement:  Purpose and Reasoning

             The Safe Third Country Agreement (“STCA”) is a treaty that was entered into by the United States and Canada as part of the U.S.-Canada Smart Border Action Plan.[8]  The agreement was signed by the two parties on December 5, 2002, and became effective two years later on December 29, 2004.[9]  The STCA was created to help the two countries better manage asylum claims made by refugees under the countries asylum laws.[10] 

            The text of the STCA was designed by the two countries to ensure that the agreement complied with both the text and the spirit of international law.[11]  Despite the fact that the United States itself is not a signatory to the Convention, the STCA acknowledges that both parties will safeguard every refugee claim, allowing them access to a fair and full status determination in accordance with the protections of the Convention, the Protocol, and the Convention Against Torture.[12]  The text of the STCA acknowledges that both the “. . . the United States and Canada offer generous systems of refugee protection.  . .” and the STCA  would uphold the protection afforded by the asylum procedures.[13]  The STCA was entered into in accordance with the advice of “the United Nations High Commissioner for Refugees (“UNHCR”) and its Executive Committee, that agreements among states may enhance the international protection of refugees by promoting the orderly handling of asylum applications by the responsible party and the principle of burden-sharing.”[14] 

The STCA addresses those refugee claimants who enter one of the two countries through a land border of the other country.  Specifically, the STCA applies to any refugee claimant who tries to enter one of the two countries through the shared U.S.-Canada land border, by train or through an airport if the claimant is being removed from the other country after being denied refugee status.[15]  However, the STCA does not apply to those are who entering one of the two countries to file a refugee claim and are citizens of the country they are fleeing or are without citizenship of any country and last habitually resided in said country.[16] 

Similar to most laws, the STCA has exceptions in which the treaty will not apply and the refugee applicant will be allowed to cross the border to file a refugee claim in the other country.  The four exceptions to the STCA are:  the family member exception, the unaccompanied minor exception, the document holder exception and the public interest exception.[17]  The family member exception applies to any individual who has a family member or legal guardian who has legal status in the country the applicant is attempting to enter.[18]  The unaccompanied minor exception applies to any minor, an individual who is under the age of 18, and is not accompanied into the country the applicant is attempting to enter by his mother, father or legal guardian, is not married and does not have a mother, father or legal guardian in either country that signed the STCA.[19]  The document holder exception applies to any applicant who holds a valid travel document or living permit from the country they are attempting to enter.[20]  The last exception, the public interest exception, applies if refugee claimant has “been charged with or convicted of an offence that could subject them to the death penalty in the U.S. or in a third country. . . .”[21]

 III.       Canadian Council for Refugees v. Her Majesty the Queen:  Are Those Who Are Barred From Making a Claim Really Protected?

 In a Canadian judicial opinion, penned by Judge Phelan, dated November 29, 2007, he evaluated the validity of the STCA between the United States and Canada and concluded that the United States was not a safe third country.[22]  The opinion in Canadian Council for Refugees v. Her Majesty the Queenaddresses a variety of legal issues that affect the validity of the STCA.   The three most relevant and troubling issues which Judge Phelan addressed in his opinion are:  (1) that the United States requires that an applicant applying for asylum file the application within one-year of arriving in the country, otherwise the applicant would be ineligible for asylum;  (2) the United States does not have a policy which allows for there to be an exception to the exclusion of those individuals who involuntarily gave assistance to terrorists;  and (3) the United States, unlike Canada and many other countries, does not allow individuals who have suffered from domestic violence to apply for refugee status.[23]

It should be noted that the Canadian government, disappointed with the rulings of Judge Phelan, appealed his decision to the Canadian Federal Court of Appeal which overturned the decision.[24]  However, the appellate court did not rule on the merits of the decision, rather, it overturned the decision because the parties bringing the case did not have standing.[25]  As this case was not overturned on substantive grounds, it is likely, based on the attention the case received, that it will have persuasive influence on any other case brought before a Canadian Court that is required to address the same or similar issues.

 A.                 Danger:  Failing to File for Asylum in One Year

 In the United States there are two procedural mechanisms, asylum and withholding of removal, which an applicant can use to make a claim to avoid being returned to his or her country of last residence if that person would be persecuted upon return on account of race, religion, nationality, membership in a particular social group, or political opinion.  An applicant who makes an asylum claim must show that the applicant has been persecuted or has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[26]   However, if the applicant is unable to prove by clear and convincing evidence that he or she applied for asylum within one year of entering the United States, that applicant is barred from applying for asylum, absent changed circumstances, and may only apply for withholding of removal.[27] 

These two mechanisms to avoid refoulement require an applicant to meet different statutory burdens.  “A moderate interpretation of the well-founded fear standard would indicate that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.”[28]  As the United States Supreme Court noted in INS v. Cardoza-Fonseca, even a 10% chance of being persecuted is enough to show a well-founded fear of persecution.[29]  Withholding of removal requires the applicant to meet a higher burden of proof, rather than requiring the applicant to prove a well-founded fear of persecution on account of the five enumerated grounds, the applicant must prove it is more likely than not that the applicant will suffer persecution upon return on one of the five enumerated grounds.[30]

The United Nations High Commissioner for Refugees (“UNHCR”) has said that the use of time limits to bar a person from receiving asylee status “is contrary to accepted asylum and refugee protection principles . . . .”[31]  The UNHCR has said that while time limits can be used for administrative purposes “it should not lead to the asylum request being excluded from consideration.”[32] 

The differing standard upon which the United States determines when refoulement should take place, based upon timing of an applicant’s asylum application, is one of the principles threatening the idea that the United States is a safe third country for refugees.  [33]  The Canadian system differs from the United States system in that a Canadian decision-maker is allowed to use evidence of the applicant’s delay in filing a claim as a factor in determining the subject fear of the applicant, but it cannot act as an outright bar for disallowing a claim.[34] 

Furthermore, according to David Martin, a former INS official who testified in Canadian Council for Refugees, the United States is the only country which differentiates upon Article 1 (definition of refugee) and Article 33 (standard for nonrefoulement) of the Convention.[35]  Since the United States differentiates in standards, an applicant who has not applied within the one year requirement and has a well founded fear of persecution, could still be returned if they have not proven that is more likely than not that they will be persecuted if returned.  Given that the United States Supreme Court determined in INS v. Cardoza-Fonseca that an applicant could be granted asylum even if there was only a 10% chance that they would be persecuted upon return, the more likely than not standard greatly increases the burden on an asylum applicant.[36]
            The Canadian court in Canadian Council for Refugees found that the United States law allowing for an Immigration Judge to deny a claim on the basis of filing a claim outside of the one year requirement was not within compliance with the Convention.[37]  Judge Phelan determined that applicants in the United States faced a danger of refoulement;  thus, the United States a country which is not a safe third country under refugee law.[38]

 B.                 When it Comes to Terrorism, Isn’t It All Really “Material”?

 Under United States law there are a variety of statutory reasons an asylum applicant can be excluded from receiving asylum or withholding of removal, including:  participating in the persecution of another;  being convicted of or committing a serious nonpolitical crime;  being viewed as a danger to the United States;  committing or supporting terrorist activity;  or the alien firmly resettles in another country.[39]  At face value each and every one of these exclusionary bars purports to protect important and legitimate American interest.  Particularly, in this growing era of geo-terrorism those individuals who are intent on committing acts of mass terror and harming innocent individuals should not be afforded the protection of United States law.

As with most laws, it is not the intent which concerns those who care about the American legal system, rather, it is the application of the law.  The statutory bar for exclusion of an individual for engaging in terrorist activities reaches more than those that just prepare and execute the terrorist activities.[40]  An applicant is engaged in terrorist activity if that person “commits an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training . . . ” to a terrorist.[41] (emphasis added).  The Department of Homeland Security and the Department of Justice have construed the term ‘material support’ in its broadest sense.[42]  The term includes de minimus support and support that was given by a person who was under duress at the time the support was provided.[43]

The Department of Homeland security has argued, and succeeded in its argument, that the term material support is intended to reach virtually all assistance, even small monetary contributions.[44]  Such an interpretation of the term material support would remove the word “material” and require only a showing that the applicant provided support.  In a case that has taken up the argument about material support for terrorist activities in the Third Circuit Court of Appeals, Singh-Kaur v. Ashcroft, the court came to the conclusion that Singh, an individual who had supplied food and water to terrorists at purely religious gatherings, had provided material support to those individuals.[45]  The Third Circuit came to the conclusion food and water, fell within the inclusive list provided in 8 U.S.C. §1182(a)(3)(B)(iv)(VI), therefore, Singh provided material support.[46]

It is “a cardinal principle of statutory construction” that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”[47]  While the court’s analysis in Singh-Kaur is correct in concluding that Singh provided support to individuals who committed or planned to commit terrorist activities, “the analysis does not end there because “material” qualifies “support,” an analysis the court failed to conduct.[48]

Furthermore, United States law does not provide for a defense of coercion or duress in cases where an applicant would be excluded based on providing material support to a person who has committed or plans to commit terrorist activities.[49]  This is contrary to Canadian law, as well as international law, which provides for a defense to terrorist exclusions where the actions taken by the applicant were committed involuntary.[50]  Specifically a Canadian court ruled that a woman forced to cook for a terrorist group was not barred from applying for asylum because she was not providing support to the group voluntarily.[51]

As Judge Phelan concluded in Canadian Council for Refugees, Canadian law is far less restrictive than U.S. law and claims made in the U.S. create a real risk of refoulement for asylum applicants, presenting the possibility that the United States might not be a safe third country for that refugee.[52]

 C.                 Domestic Violence Victims Are Not a Particular Social Group in the U.S.

The topic of domestic violence has gathered a tremendous amount of attention in the United States and American pop culture has highlighted that attention in films like Carousel (1956) and Sleeping with the Enemy (1991).  Violence against women is a widespread phenomenon that is found in developed and developing countries around the world.[53]  Reflecting the attention paid to the topic and its prevalence in the rest of the world, asylum applications in the United States based on claims of domestic violence have been on the rise over the last decade.[54]

            Like all asylum claims made in the United States, and across the world, a victim of domestic violence has to prove that she was persecuted on account of one of the five enumerated grounds.  Most European countries, Canada, Australia and New Zealand grant some form of refugee relief to victims of domestic violence;  however, United States law has been sporadic, at best, in allowing victims of domestic violence asylum relief.[55]     

            One form of domestic violence, which American courts have always granted a victim relief under asylum law, is victims of female genital mutilation.[56]  The law regarding victims of other types of domestic violence have not been granted the same relief as members of a particular social group. 

The seminal case in United States jurisprudence regarding domestic violence victims being members of a particular social group is Matter of R-A-.[57]  The applicant in Matter of R-A- had suffered violent physical abuse at the hands of her husband, including:  dislocating her jaw;  throwing a machete towards her hands;  kicking her violently in the spine;  kicking her in the genitalia;  and raping and sodomizing her at his will.[58]  The applicant in this case also repeatedly sought the assistance from the local police, however, on numerous occasions the police ignored her cries for help and when they did issue a summons for her husband to appear, he would ignore the summons and the police would take no further action.[59]  The Board determined that since she was the only member of the particular social group that her husband targeted, she was not persecuted on account of her membership in a particular social group and was unable to receive asylee status.[60]

This was not the end of the legal battle for R-A-, in 2000 the Department of Justice proposed regulations which would address the issues posed by the Board of Immigration Appeals decision in Matter of R-A-.[61]  In 2001, then Attorney General Janet Reno vacated the Board’s decision and instructed the case to be remanded and decided once regulations were finalized.[62]  The regulations were never finalized and John Ashcroft became Attorney General with the change in administrations and Attorney General Ashcroft certified the case to himself in 2003.[63]  However, after pressure from groups supporting victims of domestic violence, Attorney General Ashcroft did not decide the case and instead remanded it to the Board with the same instructions that were given in 2001, by then Attorney General Reno.[64]  Once Attorney General Michael Mukasey took office, he decided to certify the case to himself and removed the stay on all domestic violence cases, claiming that there was sufficient jurisprudence regarding the nexus requirement of particular social group to make a ruling on the domestic violence cases as of 2008.[65]

The developments in the nexus requirement for making a claim based on membership in a particular group that Attorney General Mukasey referred to was two additional requirements that the BIA added in order for an applicant to prove membership in a particular social group.[66]  The first additional requirement came from Matter of C-A-, in that case the Board ruled that in addition to proving that the group share an immutable or fundamental characteristic, an applicant making a claim for asylum on the basis of membership in a particular social group must be recognizable and understood to form a social group in that society.[67]  The second additional requirement to prove membership in a particular group requires that the particular social group have particularity.[68]  Particularity requires that the group would be recognized in society as a discrete class of persons and not be too amorphous to be defined by society at large.[69]

The long and grueling legal battle which R-A-, Rody Alvarado, has suffered through for more than a decade came to a conclusion in December of 2009.[70]   Before the close of the decade Rody was granted asylum.[71]  This change in policy towards Rody’s case came just months after the incoming presidential administration shifted its policy on claims for asylum made by domestic violence victims.[72]  In a supplemental brief filled by the Department of Homeland Security in Matter of L-R-, the government articulated how an asylum claimant who has suffered abuse from a spouse or domestic partner could fit within the current statutory framework as a member of a particular social group.[73]  The government made it clear that even an applicant who falls within its definition of a member of a particular social group would still have to prove, as do all asylum applicants, that the government was unwilling or unable to protect the victim and that the applicant was unable to relocate within the home country.[74] 

While this is an important milestone for those seeking refugee status based on persecution suffered from acts of domestic violence, United States law has yet to act conclusively in protecting these rights.[75]  The current administration has stated that it is in the process of drafting regulations to protect those who have suffered from domestic violence and feel they have no choice but to flee their homeland, but no regulations have been passed yet.[76]  Regulations concerning this issue have been in development for over a decade now and without passing regulation, policy could easily change again. 

The uncertainty of domestic violence victim’s receiving asylum in the United States led to the Standing Committee on Citizenship and Immigration to recommend to the Canadian government that one of the exclusions to the STCA should have been “women claiming refugee status on the basis that they are victims of domestic violence.”[77] Without clear direction, asylum law for domestic violence victims is uncertain and the United States may not be a safe third country for such potential asylum applicants.[78]

IV.       Making Sure the United States is a Safe Third Country:  Proposed Solutions and Regulations

 It has long been said that in the United States, administrative agencies are the fourth branch of government.[79]  As such, the authority of the regulations which these agencies impose has garnished significant importance over the years.  In 1984, the United States Supreme Court granted agencies which are given authority to execute statutes passed by Congress, wide discretion in interpreting ambiguous portions of those statutes.[80]  The court ruled that the administrative implementation of a statute which the agency has the authority to make rules, that carry the force of law, should be granted deference when the administrative interpretation is based on a permissible interpretation of the statute.[81]  In 2001, the Supreme Court limited the Chevronruling to only those administrative implementations which are formal, i.e. notice-and-comment rulemaking.[82]

            Due to the wide deference which the United States law gives to its agencies implementing Congressional law, I suggest that all of the inherent problems which could classify the United States as a country which is not a safe third country, with the exclusion of the one year time bar, could be corrected through administrative regulations through the Department of Homeland Security.  As noted above, this is something that the current administration is already in the process of completing. 

The issue that this paper addresses first, the one year time bar for asylum applications, would be the most difficult to correct in the given political climate.  Chevron deference is only applicable when the Congress has not spoken directly to the issue at hand.[83]  However, the asylum procedures in the Immigration and Nationality Act are clear, and it specifically and unambiguously bars an alien from being granted asylum if the applicant has not proven by clear and convincing evidence that the alien filed his or her asylum application within one year of arriving in the United States.[84]  Therefore, a change in asylum procedures would have to come from Congressional legislation.  I propose that Congress abolish the time limit as an exception to those who can apply for asylum and instead add the timing of the application as one of the relevant factors upon which a trier of fact may use to determine the credibility of the applicant in accordance with 8 U.S.C. §1158(b)(1)(B)(iii).

The other two issues this paper addresses, the definition of ‘material support’ and the definition of ‘membership in a particular social group,’ are not defined in Congressional law and thus are open to a degree of ambiguity.  As such, the Department of Homeland Security may pass regulations which are permissible interpretations of the terms within the statute.  A regulation defining the term material support which would bring the United States in compliance with international law could state:

“Material support is limited to that support which is voluntarily given by an individual and allows a terrorist to either escape authorities or provides significant and important support in allowing a terrorist to plan or commit an act of terrorism.  Money, which is fungible in nature, would not have to be directly linked to a plan or an act of terrorism, but it would need to be both important and significant in nature to qualify as material support.”

This definition would require that the support be materialin nature and include a defense for coercion or duress because it would require a degree of voluntariness to the support.

            The last issue with which this paper addresses allowing individuals who have suffered from domestic violence to be considered members of a particular social group, is an issue the current administration has already stated it wishes to correct.  My recommendation for regulations regarding this issue is substantially similar to the recommendation the Department of Homeland Security suggested in its supplemental brief in Matter of L-R-.  The proposed regulation would provide for two categories in which a domestic violence victim would fall into a particular social group: 

“A person is member of a particular social group if a woman is in a domestic relationship, and as a result of that relationship, viewed as a subordinate, and suffers violence that is accepted by society, or a woman in a domestic relationship who is unable to leave and is viewed by society as property as a result of her position within the domestic relationship.”

 These proposed regulations would allow for the United States to come more in line with the rest of the international community and its application of refugee law.  The changes would also protect the STCA and ensure that should another judge be asked to review the STCA would find that the United States is a safe third country.

V.         Conclusion

 The STCA, and the control it exerts over refugee claims, has had a stifling affect on claims made at the Canadian land border.[85]  In 2004, the year before the STCA went into effect, there were 8,993 refugee claims made at the land border.[86]  After the STCA became effective at the end of 2004, the next year only 4,033 refugee claims were made at the Canadian border, cutting the number of refugee claims made at the Canadian land border in half as a result of the STCA.[87]  The United Sates is receiving a substantial number of these claims that are being diverted from Canada.  In order to ensure that the United States remains a safe third country and the STCA remains good law, the United States must be “mindful of the fundamental humanitarian concerns of asylum law” and grant asylum in a manner in accordance with that principle.[88]


1.  See Hirabayashi v. United States, 320 U.S. 81 (in this case the court upheld an executive order which created a curfew for Japanese-Americans that forbade them to be out between the hours of 8 p.m. to 6 a.m.);  See Korematsu v. United States, 323 U.S. 214 (1944) (the court upheld an executive order which ordered all Japanese-Americans to vacate and not return to any area which has designated a military zone or military area or face up to a year imprisonment).

2. UNHCR The UN Refugee Agency,  Convention and Protocol Relating to the Status of Refugees, (last visited April 10, 2010) (refoulement is the forced return of a person to a country in which they are likely to be persecuted).

[3].  Citizenship and Immigration Canada, Canada-US Safe Third Country Agreement, department/laws-policy/menu-safethird.asp (last visited April 10, 2010).

4.  Id.

5.  8 U.S.C. §1158(a)(2)(A) (2008).

6.  See Canadian Council for Refugees v. H.M. The Queen, [2007] F.C. 1262 (Fed. Ct.), rev’d on other grounds, [2008] FCA 229 (Fed. Ct. App.).

7.  See Id.

8.  Citizenship and Immigration Canada, Canada-US Safe Third Country Agreement, department/laws-policy/menu-safethird.asp (last visited April 10, 2010).

9.  Id.

[10].  Citizenship and Immigration Canada, Canada-US Safe Third Country Agreement, department/laws-policy/menu-safethird.asp (last visited April 10, 2010).

11.  Citizenship and Immigration Canada, Final Text of the Safe Third Country Agreement, english/department/laws-policy/safe-third.asp (last visited April 10, 2010).

12.  Id.

13.  Id.

14.  Id.

15.  See Id.

16.  See Id.

17.  See Id.  

18.  See Id (the family member exception is designed to keep with the ideals of the Convention to maintain family unity for fleeing refugees.).

19.  See Id.

20.  See Id.

21.  Citizenship and Immigration Canada, Canada-US Safe Third Country Agreement, english/ department/laws-policy/menu-safethird.asp (last visited April 10, 2010).

22.  See Canadian Council for Refugees, [2007] F.C. 1262.

23.  See Canadian Council for Refugees, [2007] F.C. 1262.

24.  See Canadian Council for Refugees v. H.M. The Queen,[2008] FCA 229 (Fed. Ct. App.) (The appellate court ruled that the Canadian Council for Refugees, and the other organizations filing claims on behalf of unknown refugees, lacked the standing to challenge the Safe Third Country Agreement.).

25.  See Canadian Council for Refugees, [2008] FCA 229.

26.  8 U.S.C. §1001(a)(42) (2008).

27.  Id. §1158(a)(2)(B),  (D);  8 U.S.C. § 1231(b)(3) (the changed circumstances exception requires that the applicant prove the existence of changed circumstances to the applicant’s asylum claim or extraordinary circumstances relating to the delay in filing an application within one year of arrival in the United States).

28.  INS v Carodza-Fonseca, 480 U.S. 421, 440 (1987) (quoting INS v. Stevic, 467 U.S. 407, 424-25 (1984).).

29.  Id.

30.  INS v. Stevic, 467 U.S. 407, 429-30 (1984).

31.  Joanne van Selm, Access to Procedures ‘Safe Third Countries’, ‘Safe Countries of Origin’ and ‘Time Limits’, page 6 (2001) (last visited April 10, 2010).

32.  Id.

33.  See Canadian Council for Refugees, [2008] FCA 229 at 92.

34.  Id.

35.  Id. at 87-88.

36. See INS v Carodza-Fonseca, 480 U.S. at 424-25.

37.  Canadian Council for Refugees, [2008] FCA 229 at 92.

38.  Id.

39.  8 U.S.C. §1158(b)(2)(A)(i-vi) (2008);  8 U.S.C. §1231(b)(3)(B)(iv) (2008).

40.  David A. Martin et al, Forced Migration:  Law and Policy 413 (2007).

41.  8 U.S.C. §1182(a)(3)(B)(iv)(VI) (2008).

42.  Martin, supra, at 143.

43.  Id at 143-44.

44.  In re S— K—, 24 I. & N. Dec. 475 (2005).

45.  Singh-Kaur v. Ashcroft, 385 F.3d 293, 299-301 (3rd Cir. 2004).

46.  See Id.

47.  TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167,174 (2001).).

48.  Singh-Kaur, 385 F.3d at 304 (Aldisert, J. dissenting).

49.  Canadian Council for Refugees, [2008] FCA 229 at 106-08.

50.  Id. at 109.

51.  Id.

52.  Id.

53.  Martin, supra, at 329.

54.  Id.

55.  Canadian Council for Refugees, [2008] FCA 229 at 116-18;  Laura S. Adams, Feeling the Family:  A domestic Violence Victim’s Particular Social Group, 49 Loy. L. Rev. 287, 296 (2003).

56.  See Matter of Kasinga, 21 I&N Dec 357 (B.I.A, 1996) (the Board found that women who suffered from female genital mutilation suffered persecution on account of membership in a particular social group).

57.  Matter of R-A-, 22 I&N Dec. 906 (BIA 1999) (vacated by Attorney General pending further action, 2001).

58.  Id. 22 I&N Dec. at 908-10.

59.  Id. 22 I&N Dec. at 910.

60.  Id. 22 I&N Dec. at 923.






66.  Matter of C-A-, 23 I&N Dec. 951 (BIA 2006);  Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008).

67.  Matter of C-A-, 23 I&N Dec. at 959.

68.  Matter of S-E-G-, 24 I&N Dec. at 584.

69.  Id.

70.  Paul Elias, Domestic Violence victim Granted Asylum in US, Boston Globe, Dec. 18, 2009 at