What is Asylum?
For some non-U.S. citizen individuals, asylum law can be the last or best hope to obtain a safe haven from persecution. Asylum allows non citizen individuals who can prove certain legal requirements to remain in the United States, thus preventing any harm they might suffer if returned to their home countries or countries of citizenship.
Who is Asylum For?
Asylum is for a person or persons who are afraid to return to their home countries. They must have a true fear that they will suffer persecution or harm if they are returned. Always speak to an attorney about filing for asylum before making any decisions regarding your case. Depending on the circumstances of your individual case, your likelihood of success on an asylum claim may be worth pursuing. However, only an experienced professional can provide the advice and guidance needed prior to making your application.
The legal definition of an asylee (someone who has been granted asylum) is an individual in the United States who has requested admission into the country because they are afraid of returning to their own country of origin or citizenship. This means that they must be unable or unwilling to return to their country or avail themselves to the protection of their country due to the persecution that they suffered or due to a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group and/or political opinion.
How long does the Asylum Process take?
The asylum process may take months or even (and very often) years. The duration will depend on what office your application is pending with (each office has different processing times) and whether you are filing defensively (in immigration court) or affirmatively (directly to the U.S. Citizenship and Immigration Service). There are many factors that can change the duration of the case and the application itself. Please contact our office for more information about local processing times.
What are the requirements to qualify for asylum?
The individual seeking asylum must be able to demonstrate that they already suffered persecution, or that they are likely to suffer persecution in the future if they are returned to their country of origin or citizenship.
Instead of past persecution, the individual seeking asylum may also show that they have a well founded fear of future persecution if they return to their country of origin or citizenship.
Regardless of whether the individual demonstrate either past persecution or a well founded fear of future persecution, they must always show that either their past persecution or fear of future persecution is on account of on race, religion, nationality, membership in a particular social group, and/or political opinion.
What documents or proof do I need to win my asylum claim?
This depends on each individual case. In many cases, due to the urgency of the case it can be difficult to obtain the necessary evidence prior to fleeing the country where the harm or persecution occurred. In many cases, testimony from the applicant can be the greatest and most important piece of evidence. However, if the credibility or truthfulness is doubted, the value of the testimony is greatly diminished. Therefore, it is important to be well prepared and represented for the asylum interview or individual hearing depending on the case. At our office, you can depend on experienced representation to guide you through this very complicated process. Other evidence can include the testimony of eye witnesses to the harm, the testimony of expert witnesses, country condition reports, newspaper articles, etc… The evidence required for each individual case depends on the circumstances. Each case is very different from any other. This is especially true for asylum applicants. Therefore only an attorney can truly guide you through the process.
What happens if I lose my Asylum case?
If you filed for asylum while in removal proceedings, before the immigration court, then you denial will likely result in an order of removal. In most cases, you would then be able to appeal your case to the Board of Immigration Appeals within 30 days. If the appeal is denied you may appeal to a federal circuit court of appeals with jurisdiction in your case.
If you filed for asylum with the U.S. Citizenship and Immigration Service, then your denial will likely result in a referral to the immigration court where you can continue to fight your case in removal proceedings. If you are denied asylum by an immigration judge then in most cases you may file your appeal with the Board of Immigration Appeals within 30 days. If you are denied your appeal then in most cases you would then be eligible to appeal to the federal court of appeals with jurisdiction in your case.
How do I request Asylum?
If you are already present in the United States, the appropriate form is the I-589. This form may be filed with the U.S. Citizenship and Immigration Service . However, except in certain cases with exceptional circumstances, this form must be filed within one year of arriving in the United States. If the application is not filed on time and no exception to this rule applies, the application will likely be denied. The exceptions include, ineffective assistance of counsel, serious mental or physical disability, death or serious illness of your legal representative or member of your immediate family, the application was filed timely but for some reason was rejected and the application was filed with the corrections within a reasonable time period, serious mental or physical disabilities, legal disabilities, the applicant had legal status (TPS or immigrant or nonimmigrant status) or was paroled prior to their asylum application, or other certain circumstances. If you would like to know if you are exempt from the one year filing requirement, please contact our office and we can guide you through the application process and procedures.
If you are in removal proceedings, the application must usually be filed during a master calendar hearing. In some cases, a window filing may be appropriate, depending on the circumstances. Similarly, the application must be filed within one year unless an exception (see above) applies.
Who is not eligible for asylum?
- You may not be eligible for asylum if any of the following apply to you:
- You ever ordered, incited, assisted, or otherwise participated in the persecution of another person or persons on account of their race, religion, nationality, membership in a particular social group, or their political opinion.
- You were ever convicted of a particularly serious crime such as an aggravated felony and you are a danger to the community.
- There is reason to believe that you committed a serious nonpolitical crime outside the U.S.
- There are reasonable grounds to regard you as a threat to national security
- You firmly resettled in another country prior to arriving in the U.S.
- If you believe that any of these grounds could apply to you, it is very important that you contact an attorney to guide you through the best strategy of your case. If any of these grounds may apply you must tread carefully in your case.
Affirmative asylum is an administrative procedure in which the applicant submits their application, declaration, and evidence in support of his or her claim for asylum to U.S. Citizenship and Immigration Services. The Applicant will be scheduled for a biometrics appointment (fingerprint and photograph appointment) before being scheduled for an interview. At the interview, an asylum officer will interview the applicant and based on the interview and the asylum application, declaration, and evidence in support of the asylum claim, the asylum officer will decide whether to grant or deny the asylum application.
If the application is granted, the applicant will be eligible to apply for lawful permanent residency status after one year, and after four years as a lawful permanent resident, the applicant may apply for naturalization. If the affirmative asylum application is not granted, however, and the individual has no current immigration status, the asylum application will be referred to Immigration Court where the Immigration Judge will review the application de novo. This means the judge is required to review the application as if for the first time. Please be advised many cases are referred to the Immigration Court for various reasons. If your application is referred to Immigration Court, it is important to consult with an immigration attorney to determine the reasons for referral and to build a strategy to address the issues or concerns raised by the asylum office. Our office has experience renewing and presenting successful asylum applications in Immigration Court. Please contact us for a consultation.
Defensive asylum applications refers to cases which are before the immigration court in removal proceedings. These proceedings are usually commenced with a Notice to Appear (NTA) filed with the Executive Office for Immigration Review (EOIR), commonly known as the Immigration Court. These proceedings themselves are adversarial because the government is seeking to deport a person for committing immigration violation(s).
If an applicant first applies for asylum at a port of entry or if an applicant has already suffered a deportation or removal, in court or at the port of entry, the applicant must be interviewed about the nature of his or her asylum claim before he or she appears before the immigration judge or submits their asylum application. During this interview, an asylum officer will ask the applicant to describe the reasons why he or she fears returning to his or her native country, any harm previously suffered, and the reasons why the harm occurred. This interview might last half an hour or several hours. The asylum officer will determine whether there is a credible fear of returning to the home country for an asylum applicant who applies at the port of entry or border. The asylum officer will determine whether there is a reasonable fear of returning to the home country for an asylum applicant who is already subject to an order or deportation or removal.
If the asylum officer determines the applicant has met his or her burden, the applicant’s will be referred to the Immigration Judge. Applicants who first requested asylum at the port of entry or border may apply for asylum before the Immigration Court. However, applicants who are already subject to an order of deportation or removal are not eligible to apply for asylum but may apply for similar relief called Withholding of Removal and Deferral of Removal under the U.S. Convention Against Torture (CAT).
If the asylum officer makes a negative credible or reasonable fear determination, the applicant can request to have an immigration judge review the determination.
There will likely be several hearings before the immigration judge. The first hearings are called Master Calendar hearings during which the judge will first determine the issues in the case and set deadlines for the filing of an asylum application as well as any legal arguments and evidence. Eventually a longer hearing will be scheduled, known as an Individual hearing, during which the judge will hear the applicant’s testimonial evidence and ultimately decide whether the applicant will be granted Asylum, Withholding of Removal, or Deferral of Removal under the U.N. Convention Against Torture.
Consequences of a Frivolous Application
It is important to understand that if the Immigration Judge or the Board of Immigration Appeals determines that the asylum applicant knowingly submitted a frivolous asylum application, the applicant will be permanently ineligible for any immigration benefits under the Immigration and Nationality Act (U.S. immigration laws). An application is considered frivolous if any of its material elements is deliberately fabricated. If there is a frivolous asylum application finding, the applicant may still be eligible for Withholding of Removal or Deferral of Removal under the U.N. Convention Against Torture. Though they may face problems with credibility due to the frivolous finding. It is important to always be honest with the court and your attorney to avoid situations such as these.
Withholding of Removal
Withholding of Removal is sometimes referred is a related form of asylum relief, but is different from asylum relief. While a person granted withholding of removal relief will not be returned to his or her native country, the person has no legal immigration status in the U.S. It will not lead to permanent residence or citizenship and is harder to obtain. In addition, the person will not be allowed to sponsor a spouse or children, nor will they usually be issued a travel document. However, they will be allowed to remain in the United States and in most cases may be issued a work permit. The person is protected from removal to a country where they will be harmed and this is an important alternative for individuals who may not be eligible for asylum for a variety of reasons such as criminal histories or other disqualifying factors.
To qualify for withholding of removal in the U.S., an alien (foreign national) must demonstrate that that it is ‘more likely than not’ that he will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. See § 208.16(c)(2) of Title 8 of the Code of Federal Regulations (C.F.R.); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999). If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant’s life or freedom would be threatened in the future in the country of removal on the basis of the original claim. See 8 C.F.R. § 208.16(b)(1).Under Article 1 of the Convention as amended by the 1967 Protocol a refugee is defined as, “A person who owing to 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.”
While the statutory requirements to qualify for withholding of removal in the United States are substantially similar to asylum, the burden of proof to qualify for withholding of removal is higher than to qualify for asylum under INA § 208(a) in the United States. For withholding of removal, the applicant must show that there is a more than 50% chance that they will be harmed if returned to their home country. According to caselaw, this is much different than asylum where a 10% chance showing of future harm can be sufficient to show that the person should be granted asylum.
A person who is granted withholding of removal will have a removal order issued against them. That order is then “withheld” where the individual’s life or freedom would be threatened in their home country based on the person’s race, religion, nationality, membership in a particular social group or political opinion.
An applicant granted withholding of removal under INA § 241(b)(3) in the U.S. is permitted to legally remain in the U.S. and work, but is not permitted to apply for immigration benefits for any family members. Also, a grant of withholding of removal will not result in permanent residence. Further, under § 208.16(f) of Title 8 of the Code of Federal Regulations, the Immigration Service maintains the authority to return an alien granted withholding of removal relief to a “third country other than the country to which removal has been withheld or deferred.” See 8 C.F.R. § 208.16(f).
Deferral of Removal: Protection under the Convention Against Torture (CAT)
Unlike Asylum and Withholding of Removal, there are no bars to eligibility. The applicant must show that it is more likely than not, more than a fifty percent chance, that the person will be tortured if returned to their country. The U.N. Convention Against Torture (CAT) defines torture as: “severe pain or suffering, whether physical or mental, [that] is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id., art. 1; see also 8 C.F.R. § 1208.18 (a)(1). Most significantly. under the CAT, an individual does not need to prove that he or she was tortured or fears torture “on account of” a statutory ground such as a particular social group or political opinion. This mean there is no “nexus” requirement or no reason or causality for the torture.
In determining whether an applicant is eligible for CAT relief, Respondent must prove that it is “more likely than not” that he will be tortured if returned to his native country. If successful, the individual may be granted work authorization. However, if the conditions of the country change so that it is no longer likely that the individual will be tortured upon return, they may be removed more quickly and easily than under the other forms of protection. Even if successful, the individual may remain detained if it is determined that they are a threat to the community.