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Political Aslum in United States Immigration Law

Asylum is an exceedingly complicated and continuously evolving area of law.  If you are an asylum seeker, having an experienced asylum lawyer for your case is critical.  Contact a knowledgeable immigration lawyer at our office in Boulder  (303-442-8554) or Lakewood (303-557-0725)   to get expert assistance with your asylum case.

CONTENTS (linked):

The Elements of an Asylum Case


The Asylum Application Process


The Benefits (and limitations) of a Grant of Asylum

What is Asylum? Elements of an Asylum Case

Asylum Law

When you apply for asylum, you have the burden to prove that you have a genuine fear of persecution (harm or suffering),  that your fear is not only genuine but reasonable, that the harm or suffering would be inflicted on you either by your government or by a group your government cannot or will not control,  that the harm or suffering amounts to persecution and not just harassment or discrimination,  and that one central reason for the harm or suffering is based on your race, religion, nationality, membership in a particular social group, or political opinion.  You must also show that you do not face any mandatory bars that prohibit a grant of asylum.

The Immigration and Nationality Act (INA) is the source of the statutory law  regarding asylum.  See INA § 208; 8 § CFR 208. To be eligible for asylum in the United States, an asylum seeker must be present in the United States and meet the definition of a refugee:

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

INA § 101(a)(42)(A); 8 USC § 1101(a)(42)(a).   With this definition, the United States Congress adopted, with some changes,  the refugee definition  found in the 1951 United Nations Convention Relating to the Status of Refugees.   While the 1951 Convention and the 1967 United Nations Protocol are not binding on the asylum officers, immigration judges  and courts in the United States, the UNHCR  “Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees” remains a persuasive source for interpretation of asylum law.
An experienced asylum lawyer can help you win your case.

Definition of Persecution


Persecution is not defined in the INA.  The Board of Immigration Appeals  broadly defined persecution to mean  “harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome.”  Matter of Acosta 19 I&N Dec 211, 222 (BIA 1985).   While mere harassment and discrimination do not amount to persecution, threats to life and freedom generally do.   Physical abuse, beatings, torture, arrest, forced abortions, rape and genital mutilation often constitute persecution.   Incidents of harm and suffering that do not, when viewed individually,  rise to the level of persecution, may constitute persecution  when considered cumulatively.

Well-founded Fear and Past Persecution

The well-founded fear element of the asylum case involves both a subjective and an objective component.  To satisfy the subjective component, an asylum seeker must have a genuine fear of returning to your country.  The objective component requires that your fear is reasonable under the circumstances.  In Matter of Mogharrabi, the BIA  proposed  that an asylum applicant must establish (1) the applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the applicant posses this belief or characteristic; (3) the persecutor has the capability of punishing the applicant; and (4) the persecutor has the inclination to punish the applicant.  Matter of Mogharrabi, 19 I&N Dec 439, 446 (BIA 1987); INS v Elias-Zacarias 112 US 812 (1982).

The US Supreme Court clarified  that even  “a 10% chance of being shot, tortured or otherwise persecuted” is sufficient to establish a well-founded fear.  INS v Cardoza-Fonseca 480 US 421 (1987).

A well-founded fear of future persecution can also be established by showing past persecution.  When  you can establish you have suffered past persecution, you benefit from a rebuttable legal presumption of a well-founded fear of future persecution.  8 CFR §208.13(b)(1); Matter of Chen 20 I&N Dec 16 (BIA 1989)  The burden then shifts to the government to show that conditions have changed sufficiently in your country such that your fear of future persecution is not well-founded or you would be able to escape the persecution by moving to another area of your country. 8 CFR § 208.13(b)(1)(i).  However, even if the government is able to rebut the legal presumption, you may still qualify for asylum based on the severity of the past persecution or because you would face other harm (unrelated to the persecution) if you were to return to your country.  8 CFR § 208.13(b)(1)(iii).

The Persecutor

The persecution asylum seekers  fear must be either from their government or from a group their  government will not or cannot control.

 

The Nexus to Political Opinion, Religious Belief, Race, Nationality or Particular Social Group


Asylum is not available to protect individuals from legitimate government prosecution for criminal activity, from the dangers of war or general civil strife, or from the threat of a purely personal vendetta or grudge.   To be eligible for asylum, an asylum seeker must show that race, religion, nationality, membership in a particular social group, or political opinion   “was or will be at least one central reason” for the persecution.  INA § 208(b)(1)(B)(I).

  1. Race: See UNHCR Handbook ¶ 68.  Broad meaning. (ie: a Fulani in Mauritania.)
  2. Religion: Serious discrimination because of your membership in a particular religion or religious community may constitute persecution on account of religion. (A Christian in  Pakistan; an Alevi in Turkey; an Ahmadi in Pakistan.)
  3. Nationality: See UNHCR Handbook ¶ 74.   Includes not just citizenship, but may include ethnic or linguistic group and may overlap with race.  (ie: A Kurdish individual  in Turkey, Iran, or Syria.)
  4. Political Opinion: Actual or  “imputed”
  5. Social Group: This is a developing area of the law.

 

Mandatory Denial of Asylum


Certain asylum seekers,  who might otherwise qualify for a grant of asylum,  are refused asylum in the United States based on certain statutory bars.  Even if you do not qualify for asylum, because of one of these mandatory bars,  you might be eligible for protection under the Convention Against Torture or through Withholding of Removal. 

  • Asylum seekers who did not file within one year of arrival in the US, unless they can show changed or extraordinary circumstances that lead to their late filing, are barred from asylum.  INA §208(a)(2)(B), 8 CFR §§ 208.4, 208.34.
  • Asylum seekers who were previously denied asylum are barred from asylum,  unless changed circumstances exist. INA § 208(a)(2)(C)
  • Asylum seekers who participated in the persecution of others are  barred from asylum protection. INA § 208(b)(2)(A)(i); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
  • Asylum seekers convicted of a particularly serious crimes in the US are barred from asylum. INA § 208(a)(2)(A)(ii); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
  • Asylum seekers who committed serious, nonpolitical crimes outside the US are barred from asylum. INA § 208 (a)(2)(A)(iii); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
  • Asylum seekers who pose  a danger to the security of the U.S. are barred from asylum. INA § 208 (a)(2)(A)(iv); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
  • Asylum seekers who are described in INA §212(a)(3)(B)(i)(I)-(IV), or (VI) or §237(a)(4)(B) – relating to terrorist activity and support are barred from asylum, except for certain waiver provisions.
  • Asylum seekers who have been firmly resettled in another country prior to arriving in the United States are barred from asylum.  INA § 208(b)(2)(A)(vi); 8 CFR §§ 208.13(c)(2)(i)(B),  208.15.
  • Asylum seekers who may be removed to a safe third country pursuant to a bilateral or multilateral agreement.  INA § 208(a)(2)(A).



The Asylum Application Process

 

Affirmative Asylum Application with the USCIS Asylum Office


If you are physically present in the United States and you have not been placed in removal proceedings (deportation proceedings), you may be eligible to submit an affirmative asylum application with the USCIS.   The asylum applicant completes a form I-589 (application for Asylum and Withholding of  Removal)  and sends it, with copies of important supporting documents, to the USCIS service center.  It is important that your asyum application be truthful and well documented.  False statements in the asylum application or submission of fraudulent documents have serious immigration consequences and may also have criminal penalties.

An immigration lawyer with experience in asylum cases will be a critical partner in preparing and fully documenting your asylum application. During the preparation of your asylum application, your asylum lawyer will  advise on the law of asylum and prepare you for your interview.

After receiving your completed application, the USCIS asylum office will schedule a biometrics appointment and an interview  where you will have the opportunity to discuss your case with a trained asylum officer.  If you do not speak English, you are required to bring your own interpreter.  The asylum officer will not provide you with a decision until several weeks after your interview.

If the USCIS Asylum Office grants your asylum application, it will provide you with an I-94 as proof of your asylee status and a work permit and you begin your journey to United States citizenship.

What happens when the USCIS asylum office does not grant your case depends on your individual situation.  Some people submit an application for asylum while they have some other legal status in the United States (ie, foreign students).  If you have a continuing legal status, the asylum office will send a Notice of Intent to Deny (NOID).  You have a short period of time to respond to the NOID, where you can attempt to overcome the asylum officer's reasons for intending to deny your asylum claim.  If successful, you will be granted asylum.  If unsuccessful and you have maintained your other legal status, you will normally be allowed to remain in the United States during your authorized period of stay.   Most people who apply for asylum either have no other status or their status expires during the asylum process.  If that is your situation, when the asylum office does not grant your case, it “refers” your case to the immigration court. A Notice to Appear will be issued that charges you with being removable (deportable) from the United States.  The asylum office uses the information you provided in your asylum application to place you in removal proceedings.  You will have another opportunity to present your asylum claim, this time to the immigration judge. 


Defensive Asylum Application before the Immigration Judge

If you have already been placed in removal proceedings before an immigration judge and you wish to apply for asylum, the process is referred to as a defensive asylum application.  If asylum is granted,  it will "defend" you from being removed or deported from the United States.  The immigration judge also hears asylum cases that were referred to the Immigration Court from the USCIS Asylum Office.  The immigration judge does not have jurisdiction to consider your asylum case until you are found to be subject to removal (deportation).

If the immigration judge has jurisdiction to hear your asylum claim, he  or she also will consider your claim for protection under Withholding of Deportation and the Convention Against Torture.  In presenting your case in immigration court, your asylum  lawyer will certainly have you testify and may present other witnesses to support your case.  Your other witnesses may include psychologists and medical personnel who may be able to help substantiate any claim of past physical abuse.  Academics who are experts on the conditions in your country may also testify concerning the situation you would face if returned to your homeland.   After a witness for your case has provided testimony by responding to questions posed by your lawyer, they will be subject to cross examination by the attorney who represents the Department of Homeland Security.  Sometimes, the immigration judges also  ask you a few questions.  After the immigration judge has heard all the testimony and legal argument,  he or she usually give an oral decision that same day either granting or denying your asylum case.

The immigration court supplies an interpreter,  if needed for either you or  your witnesses.  A permanent digital recording is made of the complete  hearing, including all the testimony, arguments made by the lawyers, and the oral decision of the immigration judge.  If either side appeals the immigration judge's decision,  the digital recording will be transcribed and both sides will be provided with a copy of the transcript.

Appeal Rights

When the immigration judge rules on your asylum case, both you and the government may appeal an unfavorable decision.  If the decision is appealed, the immigration judge's determination is not final.  The appeal is brought before the Board of Immigration Appeals (BIA).     Normally, the BIA does not consider any new evidence on appeal.  It will make a decision based on the record that was created in your hearing before the immigration judge.  After submitting a Notice of Appeal to the BIA, the BIA will have transcripts made from the digital recording, will mail copies of those transcripts to your immigration lawyer  and will provide a deadline for your lawyer to submit a written brief.   If, while your appeal is pending,  there is a significant change in your situation or the situation in your country and you have new evidence, your immigration lawyer can submit a motion to remand.  A motion to remand is a request to the BIA to send the case back to the immigration judge.

 

The Benefits (and Responsibilities) of a Grant of Asylum

 

Employment Authorization

As an asylee, you have the right to an unrestricted social security card and the right to work in the United States, without obtaining an employment authorization document from the USCIS.

Asylees and their Family Members

When you apply for asylum, your spouse and minor children, if also present in the United States, may be included in your asylum Asylum lawyers can help bring your family members.application.  In this case,  your spouse and minor children will also be granted asylee status when your asylum case is granted.

If your spouse and minor children  were not physically in the United States when you applied for asylum, you may file for them to join you in the United States after you have received asylum status.   You apply using the form I-730.  You need to submit the I-730 application  within two years of being granted asylum.  There is no fee for the I-730 application. If you fail to submit these applications within the first two years of being granted asylum, the process to be reunited with your spouse and children will become more expensive and time consuming.

When the I-730s are granted and the overseas process completed, your spouse and children will be able to travel to the United States and will be accorded derivative asylee status.

 

 

Asylee Travel Document

If you are granted asylum, you should no longer use a passport issued by your country.  Traveling on a passport issued by your home country is traveling under the “protection” of your government.  This conflicts directly with your asylum case,  which is based on your government’s failure in its duty to protect you. 
To travel internationally, you are required to obtain a refugee travel document from the United States government. You use form I-131 to apply for a refugee travel document.  Without this document, you may not be allowed to return to the United States or upon arrival in the United States you may be placed in removal proceedings.
You should also not travel to your country of origin. 

Asylees and Lawful Permanent Residence


Normally, one year after you were granted asylum, you may submit your I-485 application for permanent residence.  When  your green card (permanent resident card) is issued, it will be back dated by one year from the date your approval for permanent residence.  This back dating will allow you to apply for United States citizenship more quickly. 


Asylees and United States Citizenship

Asylees must have had lawful permanent residence status for five years to be eligible to file an N-400 application for Naturalization.

 

To discuss your asylum case with an experienced asylum attorney, phone 303-557-0725 





Legal Disclaimer: The materials available at this website are for informational purposes only and not for the purpose of providing legal advice.  An asylum case is extremely fact sensitive and you should consult with a knowledgeable immigration attorney before submitting an application for asylum. Any failure to seek legal advice is at the readers own risk.  Saltrese Faville DeSeguin llc accepts no liability to anyone who uses the information from this website.

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