Asylum and Refugee Status

Asylum and refugee status are special protections granted to people who left their home country for their own safety and are afraid to return.

The difference between asylum and refugee status depends on the person’s physical location. If the person is outside of the United States, he/she must apply for refugee status. A person who has already entered in to the U.S. border or the interior regardless of how he/she arrived (perhaps by using a visa or by entering illegally) may apply for asylum status within the U.S.

Once granted, both the asylum and refugee status allow the petitioners to stay in the United States indefinitely and are authorized to work and allowed to apply for a green card.

A petitioner for asylum status should apply within one year of the date of his last arrival in the United States, unless he can show that changed circumstances that materially affect his eligibility for asylum or extraordinary circumstances relating to the delay in filing and filed within a reasonable amount of time given those circumstances.

Some changed circumstances may provide excuse a delay in filing for asylum for example, the petitioner maintained lawful visa status (such as student, or H1B) since coming to the U.S or the petitioner.

“Extraordinary circumstances” may include following situations like:

The petitioner suffered from medically documented post-traumatic stress disorder or severe depression as a result of abuse in his country and was unable to file for asylum when they first arrive to the U.S.

The petitioner was younger than 18 years of age when he first come to the U.S. and filed for asylum shortly after reaching 18 years old etc.

In order to be eligible for Asylum or Refugee status, a petitioner must show two things:

1. The petitioner is unable or unwilling to return to his home country because he has been persecuted there in the past or has a well-founded fear that he will be persecuted if he goes back to his home country.
2. The reason the petitioner has been or will be persecuted is connected to one of following five grounds namely, race, religion, nationality, membership in a particular social group, or political opinion.

“Persecution means” to punish, harass, injure, oppress, or otherwise cause someone to suffer physical or psychological harm. Persecution may be the result of direct government actions, or by individuals whom the government cannot or will not be able to control.

“Well-founded fear” of persecution involves both subjective and objective reasonable fear. A subjective fear exists when the petitioner really does fears returning to his home country. An objective fear exists if the petitioner can show based on objective sources of evidence or his and other witnesses’ persuasive, credible testimony, that any reasonable person would fear of persecution in his position.

There is, however, no clear definition of what persecution is, but generally it involves serious acts or actions rather than simple harassment or discrimination. It involves more serious situations such as threats, violence, torture, unlawful imprisonment, or denial of basic human rights or freedoms.

As mentioned above persecution must be based on race, religion, rationality, a political opinion and membership in a particular social group. First three grounds are pretty much self-explanatory the last two grounds however, are a little bit complex.

Persecution based on political opinion means a person carry opinions which the government doesn’t tolerate. These opinions are most likely against the government’s policies, methods or systems. A person who depends on this ground must show that the government authorities know about his opinions and persecution is a result of those opinions. Government’s knowledge of a person’s opinion may be based on person’s public speech, written criticisms, labor protests, political demonstrations in public etc.

Persecution based on membership in a particular social group involves an identifiable group of people that is recognized within society as a distinct entity and the government sees group’s views as a threat.

The members of particular social group may include but not limited to gender discrimination involving women, social classes, tribes, family ethnic groups, occupational groups, homosexuals etc.

There are two ways of obtaining asylum in the U.S. either through the affirmative process or defensive process.

Affirmative Asylum Process

The affirmative Asylum petitioner must be physically present in the United States and may apply for asylum status regardless of how the petitioner arrived in the United States or petitioner’s current immigration status.

The application must be made within one year of the date of the petitioner’s last arrival in the United States, unless the petitioner can show the “Changed Circumstances” that materially affect his eligibility for asylum or “Extraordinary Circumstances” as we explained those situations above.

The asylum application starts with filing the Immigration Form I-589 together with supporting  documents such as Medical reports showing abuse, human rights report supporting situation of petitioner’s country, police report showing violence in the petitioner’s country, proof of membership in asylum class in petitioner’s home country, letters from witnesses, newspaper articles, reports from expert witnesses and any other documents that show prosecution in the petitioner’s home country.

If the case is not approved by USCIS and the petitioner does not have a legal immigration status in the United Sates, USCIS will refer the case to the Immigration Judge at the Executive Office for Immigration Review (EOIR). The Immigration Judge conducts a ‘de novo’ hearing of the case. This means that the judge conducts a new hearing and issues a decision that is independent of the decision made by USCIS.

Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE), so the petitioner may live in the United States while his application is pending with USCIS.

Defensive Asylum Process

Defensive asylum process involves situations where the petitioner is determined to be ineligible by the immigration judge at the end of above mentioned affirmative asylum hearings, and therefore is put removal proceeding.

The petitioners are usually put in removal proceedings because of the following two reasons:

1. The petitioner was put in removal proceeding because the petitioner apprehended or caught in the U.S. or at a U.S. port of entry without proper legal documents or in violation of their immigration status, or
2. The petitioner was caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation and the petitioner was found to have a credible fear of persecution by an Asylum Officer.

Defensive Asylum Process indeed gives the petitioner a second chance when the petitioner is in removal process. Immigration judge hears testimony from the petitioner, witnesses and his family, friends and family members, reviews evidence, and decides whether or not the person will be permitted to remain in this country.

If the Immigration Judge found the petitioner ineligible for asylum status, he may determine whether the petitioner is eligible for any other forms of relief from removal such as withholding of removal, convention against torture relief, and in some instances, lawful permanent residence (a green card) for those who qualify.

If the petitioner was found ineligible for any other forms of relief, the petitioner will be deported. The Immigration Judge’s decision can be appealed by the petitioner, his attorney if they do so within 30 days of the final decision by immigration judge.

Duration of Asylum Process

It is very difficult to estimate the duration of an asylum application.  Due to heavy backlogs at the asylum offices, some petitioners may wait months and some may for years to have their asylum interview scheduled.  However, some petitioners are also being randomly chosen for faster processing times.  This is a random selection and does not depend on the strength or weakness of a claim.Those randomly selected petitioners may expect to be scheduled within about six weeks of mailing the asylum application.

Filing for asylum is a very serious decision and you should consult with an attorney before filing.

By Metin Caglar, Esq. / American Immigration Law Articles