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ASYLUM LAW OF THE UNITED STATES OF AMERICA Unlike the U. S. Refugee Program which provides protection to refugees situated outside the United States by bringing them into the Nation for resettlement, the U. S. Asylum Program provides protection to qualified refugees who are already in the United States or are seeking to enter the United States at a port of entry (see credible fear interview below). Asylum- seekers may apply for asylum in the United States without regard to their country of origin. There are no quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures). Foundations of Asylum in International Law While asylum is an ancient concept, the December 1948 Universal Declaration of Human Rights lent considerable weight to the protections afforded under asylum. The United States was one of the original signatories of that Declaration. Eleanor Roosevelt, wife of the late President Franklin D. Roosevelt, was both a representative to, and then the chair of the United Nations (UN) committee charged with its drafting. [For information about this process, see Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, Random House, New York, 2001.] Recognizing in its Preamble that "[D]isregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, …" Article 14 of the Universal Declaration identified the right of individuals "to seek and to enjoy in other countries asylum from persecution." A few years later, during July 1951, the United Nations Convention relating to the Status of Refugees provided the world with a definition of refugee based on a fear of persecution and set forth certain responsibilities and expectations for signatory states to live up to in the treatment and processing of refugees, including asylum-seekers. The international definition of refugee is a person outside his or her country of nationality and, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion is unable or unwilling to return. In addition, Article 31 of this Convention bound signatory states to not penalize refugees and asylum-seekers who "enter or are present in their territory without authorization, provided that they present themselves without delay to the authorities and show good cause for their illegal entry or presence." The United States acceded in 1968 to the 1967 Protocol relating to the Status of Refugees, which incorporates the Convention. The Refugee Act of 1980, and subsequent modifications of the Act incorporated into the Immigration and Nationality Act, provides that: Any alien who is physically present in the United States or who arrives in the United States … irrespective of such alien's status, may apply for asylum … (Section 208 of the INA). Resistance To Coercive Population Control (CPC) Programs Section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 expanded the definition of “refugee” to include individuals who have been persecuted or have a well-founded fear of persecution on account of resistance to a coercive population control (CPC) program. The expanded definition, found in Section 101(a)(42)(B) of the Immigration and Nationality Act (INA), provides that a person who has been: Forced to abort a pregnancy, undergo involuntary sterilization, persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, or has a well-founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have been persecuted or have a well-founded fear of persecution on account of political opinion. The One Year Filing Deadline An asylum seeker should file an application as soon as possible upon entry into the United States. An asylum claim is barred if a person files an asylum application after one year of his or her last arrival in the United States. The exception to the 1-Year Filing Deadline is when the applicant demonstrates either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing. The applicant needs to have filed the application within a reasonable time given the exception. A person who files late may still be eligible for protection under withholding of removal (not to be confused with Withholding of Removal Under the Convention Against Torture - see next topic). Witholding of Removal Under the Convention Against Torture (CAT) After 1998, in addition of the relief outline above, a person may also seek withholding from being removed (formerly referred to as "deported") from the United States if he or she can establish it is more likely than not that he or she would be tortured if removed to the proposed country of removal. This relief is pursuant to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 ( Pub. L. 105- 277 , 112 Stat. 2681, 2681-821). How To First Apply And Then Proceed? To apply for asylum, it is preferable for a person to first gain admission into the United States and then fill out Form I-589, Application for Asylum and for Withholding of Removal. This is also called the affirmative claim for relief and affirmative applicants generally are never detained. The applicant must follow the instructions carefully and state all of the reasons for the claim for relief and submit supporting documentation. The I-589, once timely filed, will define the scope of the claim for relief and should be as complete and legally sustainable as possible. For these reasons, the assistance of a competent asylum lawyer is well advised. Upon receipt of the I-589, the U S Citizenship and Immigration Services will schedule the applicant for an interview before an officer of the Asylum Corps (asylum officer). A person can qualify for asylum either on the basis of past persecution or a well-founded fear of future persecution or a combination of both. Generally, a finding of past persecution results in a presumption of a well-founded fear of persecution, a presumption that may be rebutted for example by evidence of changed country condition or the feasibility of relocation to another country. The asylum officer upon examination of evidence presented at the interview may either grant relief or refer the matter to an Immigration Judge. The alternate procedure, especially if refused entry, detained at the port-of- entry, or interdicted at sea, is for a person to apply for admission by asserting a fear to return because of persecution or torture, and therefore a claim to asylum, at which time the claimant will be afforded a credible fear interview by an U.S. asylum officer under the expedited removal process. The standard of proof necessary to establish a credible fear of persecution is a “significant possibility” that the applicant could establish that he or she has been persecuted on account of a protected ground; or a "significant possibility" that the applicant could establish that he or she has a well-founded fear of persecution on account of a protected ground. Credible fear of torture is defined as a "significant possibility" that the applicant could establish eligibility for withholding of removal or deferral of removal under the Convention Against Torture. An individual may be eligible for withholding of removal or deferral of removal to a country if it is more likely than not that the applicant would be tortured in that country. If credible fear of persecution and/or torture in the home county is found by the asylum officer, the applicant must appear before an immigration judge for asylum proceedings (including the opportunity to defensively file the I-589) and final determination of the merits of the claim. In the interim, the Government may continue to detain the claimant, or at its discretion, release him or her on parole upon the posting of sufficient bond. If credible fear is not found, the applicant should immediately request an expedited review by a immigration judge who may either place the person in further asylum proceedings or order the person removed from the United States. A person with an asylum claim may be also facing removal proceedings and have been placed in detention. Except for certain mandatory detention cases, most asylum seekers should be eligible for release from custody upon the determination and posting of bond. If an individual is detained, the assistance of an immigration attorney may make a difference in outcome of the proceedings. The Employment Authorization Document One hundred and fifty (150) days after the date of receipt of filing of the I-589, the asylum seeker may apply for an Employment Authorization Document (EAD) . The EAD will be issued to the applicant provided that he or she has not missed any interviews or court dates, rejected a date for individual hearing, or otherwise been responsible for unreasonable delay. With an Employment Authorization document, the asylum seeker may apply for a U. S. Social Security Number. The Burden of Proof & Standard of Persuasion The law is complex and often the claim for relief must be litigated in Immigration Court. The Government has the initial burden of proving deportability or removability by "clear and convincing evidence." Thereafter, the burden of proof shifts to the claimant: specific, detailed, and credible testimony or preferably, a combination of testimony and corroborative evidence is necessary to prove a claim at the Individual Hearing before an Immigration Judge. At the hearing, the Government's counsel will oppose the claimant, object to defective evidence, and conduct a cross-examination of all witnesses. Knowledge and observance of the Rules of Evidence is beneficial, although rigid adherence may be relaxed by the judge. Considering the totality of the circumstances, and all relevant factors, the judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’ s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. The standard of persuasion for an asylum clam is alternately expressed as a "well founded fear," or a "reasonable possibility" of persecution of a person upon removal from the United States. Successful proof of past persecution will give rise to a rebuttable presumption of future persecution. The standard of persuasion for withholding and withholding under the Convention Against Torture is higher, i.e. a "preponderance of evidence," or alternatively stated, "more likely than not." If the defenses are unsuccessful in Immigration Court, the matter must be appealed to the Board of Immigration Appeals, and if necessary taken further into the Federal appellate courts for review. The Motion to Reopen When a person seeking immigration relief receives an adverse decision from an immigration agency or an U. S.. Immigration Court, the usual course is to appeal the unfavorable decision to an appropriate tribunal. In certain limited circumstances, a Motion to Reopen may be filed within the time allowed for such a motion. An example is the Motion to Reopen following an in absentia Order of Removal. Another example which is quite specific to asylum is the Motion to Reopen by reason of changed country condition. The correct filing fee must accompany the filing of the Motion to Reopen. A Motion to Reopen usually does not automatically stop enforcement of an adverse decision and a Motion for Stay usually must be filed simultaneously. The United States Supreme Court in 2010 reaffirmed the availability of federal judicial review in the United States Court of Appeals. The filing of a Motion to Reopen in the immigration context is a complex and difficult undertaking - competent professional assistance is recommended as the efficacy of such a motion usually is found in judicial review. Getting Professional Assistance in Obtaining Asylum, Withholding, and Relief Under CAT Any person considering relief from removal under any theory of claim must carry the legal burden of proof and she or he is well advised to seek professional assistance. Any person who has received a Notice to Appear or are actually before an Immigration Judge in a removal proceeding where asylum, withholding and/or the Convention Against Torture are defenses, should have competent legal representation. The removal proceeding, unlike many administrative immigration procedures, is a fully adversarial action. The timely retention of counsel is well advised as the outcome on the merits are based on the initial application and presentation of evidence. WANGLAW will represent individuals who are seeking a protection under asylum, withholding and the Convention Against Torture. Caveat /Disclaimer: U.S. immigration statutes, regulations and interpretations of these and other federal, state and local law are subject to change and timely, competent counsel from a qualified legal professional on current and applicable law to particular facts is indispensable. This website provides information of a general nature and such information cannot pertain to any specific set of facts, and the provision of information cannot create any attorney-client relationship. For any particular situation, the visitor should obtain counsel from a qualified legal professional. The publisher reserves the right to amend the contents of this website at any time and for any reason. This website is an ADVERTISEMENT. |
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