Those of you who have suffered past persecution in your country or country of last habitual residence, or those of you who have a well-founded fear of future persecution where such persecution is based on race, religion, nationality, political opinion, or membership in a particular social group, can file for asylum or withholding of removal if your meet certain criteria.
Our asylum page has ample information regarding asylum, so feel free to scroll below to various important issues and sections pertaining to asylum law.
We first discuss the one-year requirement, the fact that asylum applications must be filed within one year of your entry unless you meet certain exceptions.
We shall also discuss the protected groups – political opinion, religion, social group, nationality, and race.
We’ll move on to the often confusing standards and definition of “persecution”, and separate it into “past persecution” and “fear of future persecution”.
What if you are able to move legally to another country? That question will be answered in the firm resettlement section.
The important application for work permits, which is a critical component and factor to those who wish to apply. Often this is how you determine whether you can continue supporting yourself and your family as you proceed with your asylum case, whether for everyday living or legal fees.
Finally, we finish off with a brief discussion of Withholding of Removal and relief under the Convention Against Torture.
The scope of our services rounds up our asylum page.
We hope you find this helpful as you assess whether you wish to apply for asylum. Our consultations are free and you are more than welcome to fill out our free consultation form, call our office, or even visit our office.
One Year Requirement
If you plan to apply for asylum, you must file within one year of your entry to the United States. You need not enter legally to file for asylum. People who cross the border or those who came in with fraudulent documents can still apply for asylum.
If you file later than one year, you must show change in country conditions or change in personal circumstances within the past year which affected your eligibility for asylum. If there are extraordinary circumstances which prevented you from filing within the one-year deadline, you may still be eligible as long as you apply within a reasonable time given those extraordinary circumstances.
These are important aspects of asylum applications. Some are denied simply due to the one year issue. Thus, the changes in country conditions or the extraordinary circumstances which led you to file more than one year from your entry should be clear and well-documented.
Asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion.
Even if you fear being tortured if returned, the torture must be “on account of’ one of these five categories, and not on account of any another reason, such as violence, wars, criminal prosecution or personal disputes. So you are required to submit evidence from which it is reasonable to believe that the harm was motivated, at least in part, by one of the five bases.
Persecution on account of participation in a political party, or participation in events that oppose political ideologies of your country, are some basis for political asylum.
Political opinion may be the actual political opinion you believe in or the political opinion imputed to you by the persecutor, whether or not you hold that political opinion.
If a parent or older sibling is an active part of a political organization or party that is or has been a target in the past for example, then harm to your family members may establish a claim to asylum where you fear that the persecutor would seek to harm you based on your association with your family and the opinion imputed to you based on this family relationship.
Social group is defined as a group which shares “a common, immutable characteristic.” Family, homosexuality, FGM (female genital mutilation), sexual preference, and membership in a group that does to conform to cultural norms, have all been in one case or another been deemed a “social group” in certain situations.
Persecution on account of religion is another basis for asylum. Christianity claims for Chinese nationals is a common example of this basis for asylum. Persecution for Coptic Christians in Egypt is another . Persecution experienced or feared due to Jewish heritage also constitutes a claim based on religion.
Another basis for asylum is nationality, which does not necessarily equate to citizenship in some country, but also membership in a linguistic or ethnic group, and may overlap with race. It also may overlap with religion, as in the case of Jewish heritage.
Persecution on account of race is also a basis for asylum. This basis overlaps most of the time with social group and either politics or nationality. Race asylum cases is quite rare, especially compared to those applying based on religion, social group, and political opinion.
Persecution includes a wide range of acts, inflicted by several types of groups or people, from political parties, to religious groups, to gangs, and even members of the government.
There is ample case law illustrating what the government and the Courts interpret “persecution” to be. Some form of detention with physical torture is for example persecution. Rape also is under case law persecution.
The definition of persecution does not, however, require a subjective intent to punish or harm the victim. Persecution may also include severe economic deprivation threatening an individual’s life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution.
If it is determined that you have established proof of past persecution, you will be presumed also to have a well-founded fear of future persecution. Now the burden shifts to the government, and if they can show by a preponderance of evidence that conditions in your country of nationality or last habitual residence have changed to such an extent that the you no longer have a well-founded fear of being persecuted upon return, then you eventually would lose your asylum application.
Your asylum application shall also be denied if despite you establishing past persecution, you have not established that your have a well-founded fear of future persecution, unless it is determined that you have demonstrated compelling reasons for being unwilling to return to your country of nationality or last habitual residence arising out of the severity of the past persecution or fear of future persecution.
Fear of Future Persecution
You will be found to have a well-founded fear of persecution if you can establish, first, that you have a fear of persecution in your country of nationality or last habitual residence on account of race, religion, nationality, membership in a particular social group, or political opinion and second, that there is a reasonable possibility of suffering such persecution if you were to return to that country; and third, if you are unable or unwilling to return to or avail yourself of the protection of that country because of such fear.
In evaluating whether you have sustained your burden to prove that you have a well-founded fear of persecution, the immigration officer or judge hearing the case shall not require the you to provide evidence that you would be singled out individually for persecution if:
- You establish that there is a pattern or practice in your country of nationality or last habitual residence of persecution of a group of persons similarly situated to you on account of race, religion, nationality, membership in a particular social group, or political opinion; and
- You establish your own inclusion in and identification with such group of persons such that his fear of persecution upon return is reasonable.
In Matter of D-X- & Y-Z-, 25 I&N Dec. 664 (BIA 2012), the Board held that if you are firmly resettled in a third country, then you are not eligible for political asylum in the United States.
Prior to that, in a case called Matter of A-G-G-, 25 I&N Dec. 486, 488 (BIA 2011), the Board set forth a framework for determining whether you are firmly resettled and thus barred from obtaining asylum. First, the DHS bears the burden of presenting evidence of an offer of firm resettlement. You can then rebut DHS’s evidence by showing that the offer has not been made, that you would not qualify to legally reside in that country.
One exception is that your entry into the country “was a necessary consequence of your flight from persecution, that your remained in that country only as long as was necessary to arrange onward travel, and that you not establish significant ties in that country.” See 8 C.F.R. § 1208.15(a).
Getting an asylum grant would allow you to work in the U.S. But if your asylum is still pending
One year after you are granted asylum, you also will be able to apply for permanent resident or green card status, which also grants you the right to work.
You can also apply for a work permit 150 days from the time you file for asylum if it hasn’t been adjudicated, and if the “clock” hasn’t been stopped prior to the 150-day mark.
Note that the government is allowed to “stop the clock” (stop counting the 150 days) for a number of reasons, such as if you request more time or fail to show up for a fingerprint appointment. But assuming you did not miss anything, and your asylum application with the CIS has been pending for over 150 days, whether or not an interview has been conducted, you can apply for a work permit. Now if you are in removal proceedings, one way to check what the “clock” is set to is by dialing 1-800-898-7180, entering your A number, and clicking on the prompt that provides you with the clock (“2” at the time of this writing).
The application process involves filling out USCIS Form I-765. You can access this form online at www.uscis.gov (click the “Forms” link and scroll down to Form I-765 in the numerical list of forms). Most of this form is self-explanatory. On Question 16, applicants who’ve been waiting for 150 days or more with no decision should enter “(c) (8).” Those whose asylum application has already been approved should enter “(a) (5).” Note that initial work permit applications based on asylum have no fees. But extensions of such have a fee of $380 at the time of this writing.
Affirmative and Defensive
If you are not in removal proceedings and you file asylum, you file Form I-589 together with its supporting documents with the U.S. Citizenship and Immigration Service (USCIS) Asylum Office. This is called an affirmative asylum application. You then would get a receipt notice, a fingerprint appointment, and then an interview notice. If you win after your asylum interview, you would get your approval notice and eventually a work permit in the mail.
But if they “deny” your case at the CIS level, they will refer you to the Immigration Court with jurisdiction over your residence, where you will still have an opportunity to fight your case through renewing your asylum application.
Now, if removal proceedings are initiated and you then decide that the relief you wish to seek is asylum, that is called a defensive asylum application. You obviously won’t have to go through the CIS for this, and instead will have to apply in Court, and eventually get an individual hearing in which the government, the Judge, and your lawyer (if you have one), will take turns asking you question pertaining to your claim.
Withholding of Removal
Withholding of removal does not have the one-year requirement, but the standards are higher than asylum, and it does not have a “one year to eventual green card application rule” like asylum. You also are not allowed to travel outside the United States while on withholding status.
Withholding of removal requires a clear probability of persecution. You must show a greater than 50 per cent likelihood of persecution.
The burden of proof is on the applicant to show that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion should he or she be forced to return home. The applicant must prove that it is “more likely than not” that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.
Convention Against Torture
To obtain relief from removal under the Convention Against Torture (CAT), you must demonstrate that it is “more likely than not” that an alien will be subjected to torture, meaning infliction of extreme physical or mental pain by a government official.
The six basic elements of torture are:
- An intentional act;
- Infliction of severe pain or suffering;
- Under the custody or control of the offender;
- For a broad array of wrongful purposes;
- By or sanctioned by a public official; and
- Not arising out of lawful sanctions.
This relief is only available to those individuals who are subject to removal proceedings. Unlike asylum, an individual cannot apply affirmatively for this relief and it cannot be granted at the administrative level: only an immigration judge, the Board of Immigration Appeals, or a Federal court can grant relief under the Convention Against Torture.
The standard is higher than that for asylum or withholding as you must fear torture, rather than persecution.
If you can establish “substantial grounds for believing you would be in danger of being subjected to torture”, there are two distinct forms of relief available under CAT:
Withholding of Removal Under CAT
Relief under the Convention Against Torture is similar to regular withholding of removal.
Thus, the CAT applicant cannot pursue permanent residence and cannot travel outside of the United States.
Deferral of Removal Under CAT
There are no mandatory bars to relief here; however, a grant of deferral can be more easily terminated than any other form of relief.
In addition, a person granted deferral may be held in detention and is not entitled to employment authorization.
However, Immigration and Customs Enforcement can release you, and the CIS can issue employment authorization. Relief under the Convention Against Torture does not allow you to apply for adjustment of status to permanent residency, and it does not confer status on your spouse or children.
However, CAT is available where there are bars to withholding of removal and asylum, e.g. where the individual has a criminal conviction or other bar.
It is also available where the individual is unable to establish that persecution is on account of one of the five protected grounds.
Consultations with our firm are free. So if you have any questions at all with asylum applications, feel free to contact us by phone, email, or even visit our firm.
Should you eventually wish to retain our firm, we are experienced in preparing, filing, and accompanying clients in asylum cases, whether with the CIS or in immigration court.
To us one the most important part of an asylum application is the claim, specifically your statement. A claim is not just a statement of when you were and how you were persecuted. As you’ve hopefully read in our synopsis of asylum claims, there are many issues that should be addressed for a completely thorough asylum claim. We mill make sure those issues are addressed – firm resettlement, fear of future persecution, one year issue, “on account of” etc.
We will make sure that you provide as much detail as possible in your claim, and that all issues are targeted within your statement and application. We will go over multiple drafts until names, addresses, dates, proper chronology, an assessment of resettlement, the one year issue, are all addressed in your claim.
If there are any details that may be relevant to your claim, we will point those out to you and have you remember and add those. How far is this from that? What is the name of that hospital? In what city was that police station located at? How far was that from where you were persecuted? How many people beat you up? What specifically did they do? Can you travel and live in other parts of your country? How long did they do this for? How many times did they do this etc.
If there are any specific documents that we believe would strengthen your case, we will also point that out to you.
The point is that we believe the most important part of an asylum application is the pre-filing stage. The preparation. You can do good at the interview or in Court, but if that initial application is full of inconsistencies and inaccurate details, the CIS and the Courts could easily deny a case simply based on credibility issues. That’s why we believe utmost care, thoroughness, and attention to detail are important in the preparation of an asylum application.
Our firm has had clients all over the United States, and we have accompanied them in interviews and hearings as well. Our firm will also prepare you for the interview or hearing, in many cases multiple times.
If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately.