What is Asylum?
Asylum is a form of protection provided by the United States to individuals from a foreign country who are unable or unwilling to return to their home country because they cannot be protected by their home country because the individual has suffered past persecution or the individual has a well-founded fear of being persecuted in the future on account of one of five protected grounds.
Can I apply for Asylum because of the many people that are robbed or killed in my country?
In order for your Asylum application to be approved it is critical to prove that you were in fact persecuted or will be persecuted under U.S. Asylum law and that the persecution has a connection to one of five protected grounds which are race, religion, nationality, membership in a particular social group or political opinion. What that means is that if your only basis for claiming Asylum relief is the high likelihood that you will be a victim of a violent act because of the high crime rate or other general violent conditions in your country, your potential application for asylum will likely not be successful.
What is Persecution?
Examples of Persecution have included 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. It is important to understand that this list does not fully encompass all the potential forms or acts of Persecution because Persecution under U.S. Asylum law is not specifically defined. Whether or not an act is considered Persecution is primarily based on the varying legal interpretations established by Immigration and Federal Appellate Courts across the United States. This means that Immigration and Appellate Courts in one state or region can view a certain violent act as an act of persecution while Immigration and Appellate Courts in another state or region can view the same or a substantially similar act to not be an act of persecution. This creates a difficult situation for potential victims of persecution because such victims in many cases will not be able to determine whether the violent act was an act of persecution. As a result, the rule of thumb for anyone contemplating filing an Asylum application is for that person to consult with one of our experienced Immigration Attorneys to assist in determining whether the violent act was an act of persecution.
Persecution on Account of a Protected Ground
An applicant for Asylum protection must not only prove persecution but as previously stated, must also prove that the persecution was on account of one of the following protected grounds that are race, religion, nationality, membership in a particular social group or political opinion. What is important to understand is that even if the applicant is successful in proving persecution, the case can still fail if the applicant fails to prove that the basis or connection to the persecution was based on one of the five protected grounds. There are many cases where proving the connection to one of these five classes is not difficult, but there are also many cases where it is difficult or not clear that the persecution was connected to one of the five grounds. Furthermore, in cases where persecution is against a particular social group there is an additional burden of having to attempt to define whether a group will be considered a particular social group under U.S. Asylum law. The problem is what constitutes a particular social group is also not clearly defined under U.S. Asylum laws. The issue of identifying a particular social group is almost identical to the issue of identifying whether an act is considered an act of persecution meaning that in order to attempt to identify a social group you will need to commence in researching and reviewing Immigration and Appellate Court decisions to determine whether the group the applicant claims membership with will be considered a social group as interpreted by the courts in the state or region within the United States that has authority over the application. Again, it will be extremely difficult for a non-attorney to make this determination and it is highly recommended that you consult with one of our experienced immigration attorneys to have the attorney properly evaluate your case to determine whether persecution was in fact on account of a protected ground or if based on social group whether your group will be considered a proper social group to qualify you for Asylum protection.
How can I apply for Asylum? What are the Different Ways to Apply for Asylum?
Affirmative Asylum Application
If you are living in the United States with or without legal immigration status, you can file the Asylum application by submitting form I-589 with documentary evidence in support of your claim with the United States Citizenship and Immigration Service, (“USCIS”). After submitting the application, you will be scheduled for an interview at a local USCIS office to have your fingerprints taken. The USCIS website claims that the Asylum application process should be completed within 180 days, but many cases go beyond that time period and likely won’t get to the interview stage after one year has passed after submitting the application. Keep in mind that after 150 days have passed after submitting the application, an Asylum applicant will be eligible to apply for a work authorization document.
At some point after fingerprinting you will eventually receive another notice scheduling you for an interview before a USCIS officer. The interview with the officer will consist of questions designed to assist the officer determine whether you were a victim of persecution and whether the persecution was on account of one of the five protected grounds. If your application is successful you will receive an approval notice and after one year you may apply for your Green Card. It is important to also understand that if your application is denied by USCIS, your application will be referred to an immigration judge who will review and decide whether to grant you Asylum protection or decide to agree with the USCIS determination, deny your application and order your removal form the United States.
Defensive Asylum Application
This process is the scenario where you are placed in removal proceedings and in defense of your removal from the United States, your I-589 application is submitted with the Immigration Court where your removal case is pending. Your Asylum application essentially serves as a defense against your removal from the United States. You can be placed in removal proceedings after being apprehended by Immigration agents for being present in the United States without status; for having violated your immigration status or appearing at a US port of entry without proper legal immigration documents. For a more detailed discussion regarding removal proceedings click here. For a more detailed discussion regarding Asylum seekers arriving at a US Border click here.
Can family members be included with my Asylum application?
Yes, you spouse or unmarried child under 21 years of age can join in your Asylum application.
Is there a deadline for filing my Asylum application?
Yes, you must file your Asylum application within one year of arriving in the United States regardless of whether you are an individual filing an Affirmative Asylum Application or an individual in removal proceedings filing a Defensive Asylum Application. Keep in mind that there are exceptions to the one-year filing deadline. A comprehensive discussion of these exceptions can be found by clicking here.
Can I apply for Asylum if I have been convicted of a criminal offense?
You will be disqualified from Asylum protection if your criminal record reveals a conviction of a particularly serious crime; commission of a serious non-political crime outside the United States; a reason or reasons to believe that you are a danger to the security of the United States; participation in terrorist activities or persecution of others.
With respect to particularly serious crimes, crimes designated as aggravated felonies fall under the category of particularly serious crimes. For a discussion of aggravated felonies click here. There are also other crimes that are not aggravated felonies that are not clearly defined that contain elements of violence and injury such as felony assaults and sex crimes that can also be considered as particularly serious crimes. Other factors that can lead an Immigration Judge or an Asylum officer to conclude that a conviction is a particularly serious crime are the nature of the conviction; the length of the sentence; and the facts that are the basis of the conviction that demonstrate that the individual is likely to be a danger to the community.
Serious non-political crimes will be determined by comparing the foreign crime with similar US state or federal crime. An Immigration Judge or Asylum Officer will likely look for elements in the foreign crime that are similar to U.S. crimes that are aggravated felonies or have elements of violence or harm. Furthermore, it is important to understand that a crime that was committed for a purely political reason might still bar you from Asylum protection if the acts of the crime are fount to be disproportionate to the political objectives. Finally, serious non-political crimes; acts revealing a reason to believe you are danger to the United States, terrorist activities or the persecution of others do not require a formal criminal court conviction to bar you from Asylum protection.
Determining whether your past criminal history will disqualify you from Asylum protection is a very complicated task because as stated not all criminal violations are specifically defined and because interpretations of what constitutes a disqualifying crime also vary from state to state or region to region within the United States. As a result, you should have one of our experienced immigration attorneys review your history to determine whether you will be disqualified from Asylum protection and to also determine if you have other options to help you live in the United States.
What are the Benefits of Asylum?
Individuals granted Asylum is protected from being returned to his or her home country and will be authorized to work in the United States. As briefly stated before, the greatest benefit resulting from being granted Asylum protection is that after one year of obtaining approval, you may apply for lawful permanent resident status also known as applying for a green card. Furthermore, after four years have passed after obtaining your green card, you can proceed to apply for U.S. Citizenship.
A person applying for Asylum protection has a lot at stake including risking removal from the United States and more importantly being removed to a place where the individual’s life is at risk. Therefore, it is important to have one of our experienced Immigration Attorneys review your case to help you decide whether you have a case that will likely succeed or to help you prepare to present your case in a manner that greatly increases your chances of being approved.
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