Asylum relief is granted to individuals who meet the definition of a refugee who is defined as a person who is unable or unwilling to return to their country of nationality because of fear that they will be harmed because of past persecution or a well-founded fear of persecution on account of one or more protected grounds which include The person must be in the U.S. and while here they must file a petition that indicates that they fear going back to their home country. Asylum leads to a green card.
Persecution must be connected to a Protected Ground
It is important to understand that being a victim of violence in a country considered to be unsafe because of general violent conditions, civil strife or war will likely not be enough to succeed on an Asylum claim. Instead, the persecution suffered or to be suffered must be on account of race, religion, nationality, membership in a particular social group or political opinion. Usually, claims where there is evidence of substantial violence against a particular race, religion, nationality or individuals that have manifested a certain political opinion are generally not that difficult to prove since the group and the reason for the violent behavior or persecution are usually easy to identify. However, this reality has begun to change especially in claims based on persecution on a particular social group which are requiring more substantial efforts to clearly define the group as well as explaining that the persecution is specifically focused on members of the group and not against all or most citizens of a country.
Currently there is conflicting Appellate decisions addressing the issue of proving cases based on membership to a particular social group. For example, for years a claim based on an Asylum Applicant having suffered domestic violence would have resulted in an approval of the application. These types of claims had a high rate of success because it was thought that persecution against a certain gender had the circumstances and defining characteristics that a group composed of members of a race, religion or nationality possessed. However, recently, the Attorney General issued a decision indicating that such a claim should not automatically result in an approval because the Attorney General believed that the group was defined or created because of the persecution experienced by the victim and not necessarily the gender of the group.
The reasoning by the Attorney General is flawed because like claims based on race, religion and nationality most gender-based claims are based on violent acts that can only be perpetrated against a certain group or gender. This decision now exists in contradiction to gender-based claims based on the unfortunate and atrocious cases of women who suffer widespread female genital mutilation in certain countries which have always been approved. Both types of cases may have differences, but possess the same important elements including the widespread intentional violence against a certain gender instead of incidental acts of widespread violence in a country that happens to include members of a certain gender.
Because of this decision by the Attorney General, care should also be taken in cases based on race, religion, nationality and political opinion to provide evidence defining the group including evidence that the group exists, share characteristics that are unchangeable and are recognized as socially distinct in a relevant society. Furthermore, an Applicant should provide evidence demonstrating that the persecution is focused on the shared characteristic within a protected ground in order to avoid a decision finding that members of a proposed group just happened to have been swept up in the vast numbers of violent cases that occur in a particular country or that a particular group does not really exist or not viewed with a relevant society as distinct from the general population. Examples of evidence that helps focus on demonstrating persecution focused on a claimed group may include:
- In gender-based claims, evidence of social norms that prevent group members with the same gender from severing legal or social ties with a spouse or partner.
- Evidence of the unwillingness of government institutions or families to protect members of a particular group through the police or court system.
- Evidence of the unwillingness of the government to provide assistance with relocation of members of a particular group.
- Evidence of widespread and tolerated violence against certain groups.
These types of evidence potentially serve to prove that a group shares unchangeable characteristics, recognized within the society the group lives within and whose shared characteristics form the basis of the persecution.
In contrast, claims that may appear to be good cases, but will likely fail include cases based on high rates of violence in an Applicant’s country where there is little to no evidence properly defining a group and/or that violence is focused on a particular group. Examples of such cases include cases where an Applicant has suffered persecution by criminal organizations such as drug cartels, or gangs where it appears that the violence is based on revenge, extortions or the widespread violence caused by the criminal organization while conducting its criminal activities. As a result, always remember no Asylum case is an automatic win and that the Asylum case with the best chance of success provides evidence defining a group, it’s characteristics and distinction and evidence demonstrating that the violence or persecution is based on a group’s shared characteristics.
The type of harm that is required to be proven is identified as persecution. In order to qualify for Asylum relief, the Applicant must prove either past persecution or a well-founded fear of persecution on account of one or more of the protected grounds.
Persecution may include acts of Physical Violence; Torture; Threats of serious harm; Detention; Mental, Emotional and Psychological Harm; Substantial or Severe Economic Deprivation; and acts of Severe forms of Discrimination and Harassment. There can potentially be other types of acts that can be considered Acts of Persecution. We discuss the issue of Persecution in our Asylum blog you can access by clicking here.
An Applicant must file the Asylum Application within one year of having arrived in the United States. There are certain exceptions that will allow for filing of the application past the one-year deadline which are discussed in our one-year deadline page which you can review by clicking here.
Certain past acts may also disqualify an applicant from Asylum relief. These acts include convictions for particularly serious crimes; commission of a serious non-political crime outside the United States; acts that create a reason or reasons to believe that the applicant is a danger to the security of the United States and participation in terrorist activities or persecution of others. We discuss in further detail these disqualifying acts in our Asylum blog you can access by clicking here.
Affirmative Asylum Application
An applicant present in the United States may file an Asylum application by submitting form I-589 with supporting documentary evidence before the United States Citizenship and Immigration Service, (USCIS). There is no filing fee for now, but always keep in mind the one-year filing deadline. The application process will include USCIS taking the Applicant’s fingerprints and an eventual interview before an Asylum trained Immigration Officer. Our Asylum blog post takes you through the stages of the application process. You can access the Asylum blog post by clicking here.
Defensive Asylum Application
Applicants that are in pending Removal/Deportation proceedings may apply for Asylum Relief to defend against Removal/Deportation. The same form I-589 is submitted, but instead of applying directly with USCIS, the application is filed with the Immigration Court having jurisdiction over the Removal/Deportation case. Again, there is no filing fee for now and continue to keep in mind the one-year filing deadline. A detailed discussion regarding removal proceedings can be accessed by clicking here.
How long does Asylum Status last for?
Asylum ultimately results in a green card so it does not have an expiration and is granted for an indefinite period. However, a beneficiary of Asylum status can lose status if one of the following circumstances occur:
- USCIS determines that the Asylum application was based on fraud.
- The Asylum beneficiary committed an act that violates Immigration Law that subjects the beneficiary to removal from the United States.
- The Asylum beneficiary no longer meets the definition of a refugee.
- The Asylum beneficiary has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
- The Asylum beneficiary constitutes a danger to the community of the United States, if convicted of a particularly serious crime.
- The Asylum beneficiary Committed a serious nonpolitical crime outside the United States prior to arriving in the United States.
- The Asylum beneficiary is a danger to the security of the United States, including terrorist activity.
- The Asylum beneficiary may be removed, to a country (other than the country of the applicant’s nationality or last habitual residence) in which the applicant’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, where the applicant is eligible to receive asylum or equivalent temporary protection;
- The Asylum beneficiary Has voluntarily availed himself or herself of the protection of the country of nationality or last habitual residence by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or
- Asylum beneficiary Has acquired a new nationality and enjoys the protection of the country of his new nationality.
As stated, an Asylum beneficiary can maintain status indefinitely but will be eligible to apply for Legal Permanent Resident Status after one year after having obtained Asylum Status.
How are Family Members Treated?
A Spouse and children under 21 years of age who are present in the United States can obtain Asylum status with the Applicant’s primary Asylum application. If the spouse and children are outside of the United States, after approval, the Asylum Beneficiary can petition for the family seeking status filing form I-730 within 2 years of obtaining Asylum protection status.
Other Considerations or Related Articles
Asylum status allows the beneficiary to work in the United States and apply for a work authorization document. Remember that after one year, the beneficiary can apply for Legal Permanent Resident Status.
Applying for Asylum at the Border
When an Asylum Applicant appears at a United States Border Checkpoint, the Applicant is initially detained and subsequently scheduled for an interview with a specially trained Immigration Officer where the officer determines whether the Applicant has a credible fear of being persecuted if returned to the Applicant’s country of origin. This interview is known as a credible fear interview. If the officer determines that the Applicant does in fact have a credible fear, the officer refers the case to the Immigration Court where the Applicant files the I-589 application and has the full case heard by an Immigration Judge. After passing the Credible Fear Interview, Immigration authorities will determine whether to release the Applicant on what is called Parole status. Release is determined on a case-by-case bases, provided that the Applicant does not present a flight risk or security risk. Immigration officers need to classify the Applicant in one of five categories:
- Aliens who have serious medical conditions, where continued detention would not be appropriate.
- Woman who have been medically certified as pregnant.
- Certain juveniles.
- Aliens who will be witnesses in proceedings.
- Aliens whose continued detention is not in the public interest.
In the event the Applicant does not pass the credible fear interview, the Applicant can have the case referred for review to an Immigration Judge where the Judge will either confirm the decision or vacate the decision, subsequently opening a removal proceeding matter to eventually hold a trial on the merits of the Asylum Application.
Migrant Protection Protocols
A new program enacted by the current administration requires Asylum Applicants from Spanish speaking countries including Brazil that are referred to removal proceedings to be forced to wait for their case from Mexico. Asylum Applicants exempt from this program include:
- Unaccompanied children
- Citizens or nationals of Mexico
- Individuals processed for expedited removal
- Individuals in “special circumstances,” including:
- Individuals with “known physical/mental health issues”
- Individuals with criminal records or a history of violence
- Individuals determined by an Asylum Officer to be “more likely than not” to face torture or persecution in Mexico on the basis of race, religion, nationality, political opinion, or membership in a particular social group
This policy is currently in Litigation and may be upheld or terminated pending decisions from the Appellate Courts hearing the matter.
Asylum Transit Ban
Another fairly recent program that bars makes Asylum Applicants who enter the United States through the southern border who transited through another country after leaving their country of origin ineligible for Asylum. Currently this ban is also in litigation but is also suspended pending final decision from the Appellate Courts hearing the matter.