Asylum is a form of protection for individuals who arrive or enter the United States and fear they will be harmed if they must return to their home countries. There are many misconceptions about asylum law. It is a very difficult claim to prove and it can sometimes be extremely difficult to document the persecution either suffered in the past or likely to be suffered in the future in the applicant’s home country if returned. Prior to applying for asylum, an applicant should consult with an attorney.
Benefits of Asylum
Individuals who are granted asylum are eligible to become permanent residents after one year in asylee status. About four years after that they are usually eligible to become naturalized citizens. Each require their own immigration process, though they are usually less extensive than the process of the initial asylum application.
Who is an asylee?
An asylee is defined as a person who is in the United States or has requested to enter the United States as an asylee at a U.S. border and who meets the definition of a refugee. Specifically, someone who is unable or unwilling to return to their country or origin or avail themselves to the protections 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 and/or political opinion.
Applicants must meet the following requirements:
- Persecution: The applicant must show that they have been persecuted in the past or are very likely to be persecuted in the future if they return home. OR
- Fear: The applicant must show that they are afraid to return to their country of origin AND
- Nexus: The applicant must show that the persecution suffered in the past or the persecution they will likely suffer in the future is on account of one of the five grounds. This can sometimes be one of the hardest requirements to show.
- The five grounds include: (1) Race, (2) Religion, (3) Nationality or Ethnicity, (4) Membership in a Particular Social Group, or (5) Political Opinion.
- The asylum claim can be based on one or more of these grounds
If one or more of these requirements cannot be met, the applicant will likely be denied asylum and it may result in removal to the country they fear returning to unless they are eligible for another form of relief other than asylum. Absent any exception, an asylum applicant generally must file their application within one year of arriving in the United States. If this deadline is not met and there is no applicable exception to the rule, the asylum application will likely be denied. Exceptions to the one year filing deadline include, but are not limited to, (1) serious mental or physical disability, (2) legal disability, (3) ineffective assistance of counsel, (3) the death or serious illness of the applicant’s legal representative or a member of the applicant’s immediate family; (4) the applicant filed within one year, but the Immigration Service rejected the filing and the applicant refiled with corrections within a reasonable period of time, (5) the applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole prior to applying for asylum.
Grounds of Ineligibility
A person is ineligible for asylum if any of the following apply:
- the applicant ordered, incited, assisted, or otherwise participated in the persecution on account of race, religion, nationality, membership in a particular social group, or political opinion;
- the applicant has been convicted of a particular serious crime such as an aggravated felony and is a danger to the community;
- there are serious reasons to believe that the applicant committed a serious nonpolitical crime outside the U.S.;
- there are reasonable grounds for regarding the applicant as a threat to national security
- the applicant was firmly resettled in another country prior to arriving in the U.S.
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, then the applicant will be allowed to become a permanent resident after one year and a citizen five years after that. If the application is denied, however, and the individual has no current immigration status, they will likely be placed in removal proceedings and they may renew their asylum application before the Immigration Judge. The Immigration Judge will review the application de novo which means the judge is required to review it again anew as if a prior negative decision was never rendered.
Defensive Asylum applications refers to cases that 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. 8 C.F.R.
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.