Asylum
What is asylum?
The United Nations High Commissioner for Refugees defines asylum as "a form of protection which allows an individual to remain in the United States instead of being removed (deported) to a country where he or she fears persecution or harm. Under U.S. law, people who flee their countries because they fear persecution can apply for asylum. If they are granted asylum, this gives them protection and the right to stay in the United States. Those who are granted asylum are called asylees.
What is a refugee?
A refugee has 3 main characteristics:
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Physically outside their home country (or last residence)
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Has suffered past persecution or has a well-founded fear of future persecution
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The harm they fear or have experienced is on account of one of the five protected grounds
Who is eligible for asylum?
Well, there are four steps in determining eligibility for asylum:
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Applicant satisfies the definition of a refugee
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Applicant is not subject to bars to asylum
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Applicant warrants a favorable exercise of discretion, or, in other words, the adjudicator decides that you merit asylum
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Applicant is in the U.S or at a U.S port of entry
What are the benefits of Asylum if granted?
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Right to remain in the U.S
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Right to travel and re-enter the U.S.
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Permission to work - You will be given a Social Security card.
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Derivative status for your spouse and unmarried children under 21.
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Pathway to citizenship: You must remain an asylee for 1 year. Then you may apply to become a Legal Permanent Resident(LPR). After 5 years as an LPR, you may apply for citizenship.
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Access to certain forms of government assistance; financial, medical, English language, employment training and placement, etc. However, asylees generally are not eligible for federal benefits.
Affirmative Asylum claims for parolees will include:
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Cover Letter
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I-589 and G-28
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Evidence: (declarations, official documents, identity documents, proof of status, country condition reports, medical reports, psychological evaluation, photographs, news stories, text messages, audio recordings, etc.)
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Certified translations
The evidence needs to demonstrate
The individual is:
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Unable/unwilling to return to home country because of:
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1. Past persecution or a well-founded fear of future persecution
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2. On account of (Nexus) → One of the protected Grounds, which includes: Race, Nationality, Religion, Political Opinion, or Membership in a Particular Social Group
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Evidence needs to demonstrate that you are worthy of discretion
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The pros (community involvement, good moral character) outweigh the cons (any sort of criminal activity). The adjudicator can take into account other factors not listed here
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3. Not subject to the bars to asylum
What is persecution?
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No precise definition, but includes a threat to life or freedom or other serious violation of human rights. It is decided on a case-by-case basis. Persecution does not need to include bodily harm
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A soft definition is: “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985)
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Includes both physical and psychological harm
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Permanent or serious injury not required
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Must be more than “harassment” or “discrimination”
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Incidents should be viewed cumulatively
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Generalized or countrywide violence is not generally considered persecution
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Persecution is specific
Who are the persecutors?
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The government or actors that the government is unwilling or unable to control, and/or there is a pattern and practice of persecution to those who are similarly situated
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Government actors examples:
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Police
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Military
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Non-governmental actors examples:
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Guerrilla and paramilitary groups
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Family
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Community members
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Gangs
5 protected grounds for asylum
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1. Race
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2. Religion
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3. Nationality: can also be ethnic minorities, tribes (example: Hazara)
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4. Political opinion:
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Not defined in the INA, covers a broad range of views. May be expressed through actions and/or words or not expressed at all. The political opinion that matters here is the political opinion of the victim as it is perceived by the persecutor.
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Can be an opposition party (Ex: National United Party of Afghanistan).
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Can be a very specific political opinion (Ex: feminism).
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5. Social Group:
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The group must exist outside the context of shared persecution.
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Examples: family gender identity, gender-based violence, witness to gang violence .
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This is the more creative category.
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All categories can be imputed
Nexus
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Nexus means that the harm that you face or fear is connected to one of the protected categories
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An example that fits nexus:
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a political rally is going on that you happen to be in, and the persecutor thought that you were in support of that political agenda, so they seek to persecute you because of your perceived membership and support of specifically that political agenda
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An example that would not work:
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The persecutors were beating everyone in the street that day
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It is important to note that generalized violence is not nexus
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This requires an examination of the persecutor's views of the applicant’s actions or inactions
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There may be multiple reasons for persecution, but there must be at least “one central reason” that is tied to one of the five categories
How asylum is different for Newly Arrived Afghans
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Asylum is not appropriate for all Newly Arrived Afghans - it is important to consider all the possible options and speak with legal counsel to determine which option is best for the applicant’s specific situation.
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1. Family-based petitions
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2. SIV → eligibility based, non-discretionary. Automatic green cards for the applicant as well as family members.
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3. Asylum → discretionary
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4. Parole and TPS are valid statuses as well
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Asylum is not easy!
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One must have a claim. The applicant is required to present evidence (documentation, testimony or a statement, country conditions, and information about what is happening to people in a similar situation)
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The claim needs to be based on a protected category.
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A humanitarian crisis is not a protected category/the Taliban being in charge is not enough for an asylum claim by itself.
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What an applicant files in the U.S. is with them forever. It is important to take your time on your application.
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An applicant has to actively participate in their asylum application.
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As long as applicants are maintaining parole or TPS, that should be enough to count as an extraordinary circumstance for the one-year filing deadline.
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Timeline of an asylum case
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Asylum cases can take a very long time to be processed. It is hard to know how long it will take for you to hear back.
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USCIS has issued a special policy for evacuated Afghans, stating that their asylum cases should be completed within 150 days.
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Most Afghan cases seem to be taking slightly longer, but are still moving relatively quickly.
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Non-Afghan cases take about 5 or more years.
What Makes for a Strong Asylum Case?
Components of a strong case:
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1. Clearly articulated elements
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2. Clearly articulated past persecution, or what precisely do you fear will happen to you if you go back
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3. Specific and sufficiently detailed :
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Specific example:
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“I” fear being arrested at the airport and held in jail by X person
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“I” fear I will be forced to marry a Taliban fighter
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Sufficiently detailed example:
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Not: the man came to my house
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Correct: the men with taliban uniforms, with guns, came and broke down the front door at this specific time
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Not: they threatened us
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Correct: They said “______”
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Credibility:
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Telling the same consistent story each time.
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The applicant’s statements match the country conditions of that time.
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Providing evidence:
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Medical records from when the applicant was beaten.
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A copy of the letter that included a threat.
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Anything that backs up the applicant’s asylum claim.
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Bars to Asylum:
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This is factually specific (there are 5: Safe Third Country, One-Year Deadline, Previous Denial, Firm Resettlement, and Terrorism.)
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If you think one or more bars apply to you, work with a legal provider to help you navigate your factual situation, or any exceptions
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Bars to asylum are evaluated during the application process, so if you think one or more bars may apply to you, you may still want to apply for asylum and make arguments about why those bars do not apply
1. Safe Third Country
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If the applicant can be sent to a safe third country pursuant to a bilateral or multilateral agreement, the applicant must apply there before trying to apply in the U.S.
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At present, only one such agreement is in effect, between the U.S. and Canada.
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This only applies if you are at the border to seek asylum without permission to enter the U.S.
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If you have a visa to enter the U.S. it does not matter.
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If you think this bar may apply to you, work with a legal provider to help you navigate your factual situation, or any exceptions
2. One-Year Deadline - The applicant must file for asylum within one year of the date of his or her last arrival in the U.S. unless he or she demonstrates changed circumstances that materially affect his or her eligibility for asylum or extraordinary circumstances relating to the delay in filing the application
Exceptions to the one-year filing deadline for asylum
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1. Changed circumstances:
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This means that circumstances that materially affect asylum eligibility have changed and now it is possible that you have an asylum claim
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Examples:
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A set of laws changed in your country
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The applicant themselves came out as gay, and now they can’t go back to their home country
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2. Extraordinary circumstances:
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This refers to events or factors directly related to a delay in filing due to Illness, legal disability, ineffective assistance of counsel, maintaining lawful status, etc. However, the asylum claim itself remains unchanged.
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Examples may include:
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PTSD
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Legal disability → being a minor
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Ineffective assistance to council → the client’s attorney failed to mention that there is a 1 year filing deadline
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Parole and TPS → count as an extraordinary circumstance for the filing deadline
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3. Previous Denial
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Previous Denial - If an immigration judge or the Board of Immigration Appeals previously denied an asylum application, the applicant is ineligible unless he or she demonstrates “the existence of changed circumstances which materially affect the applicant’s eligibility for asylum.”
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“Material” means a substantial alteration in the circumstances that USCIS relies on when determining if an applicant meets the eligibility of the asylum claim. This is a change to the framework, not necessarily clarifying facts.
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Examples:
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The applicant’s first asylum claim was based on fearing persecution from gangs for the imputed identity of being gay in his home country. He was denied. However, the facts have since changed because now the government in his home country has implemented laws against gay people. He can now be arrested in his home country. This demonstrates changed circumstances that materially affect the applicant’s eligibility for asylum.
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4. Firm Resettlement
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Firm Resettlement - An applicant is ineligible for asylum if he or she firmly resettled in another country prior to arriving in the U.S.
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To be firmly resettled in another country, the applicant must have received an offer of permanent residency, citizenship, or other permanent status in that country. An applicant is not firmly resettled if he or she entered that country as a necessary consequence of flight from persecution, remained in that country only so long as necessary to arrange onward travel, and did not establish significant ties to that country. An applicant also is not firmly resettled if he or she can establish that the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country that he or she was not in fact resettled.
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Ties that might trigger the bar include but are not limited to:
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Marrying someone
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Joining a church
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Getting a job
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Buying a car
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Opening a bank account
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Talk to your attorney! There might be ways to argue around these!
5. Terrorism
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Terrorism - An applicant is ineligible for asylum if he or she has shown a history of engagement in terrorist activity including providing “material support” to a terrorist organization, having a connection to a terrorist organization, or even being the spouse or child of someone who is inadmissible.
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The case law dealing with this provision defines “material support” in a way that is extremely broad. For example, people who have provided food to armed groups, and people who have been forced to give small amounts of money to armed soldiers at checkpoints, have been barred from asylum under this provision.
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Most individuals who are barred for asylum under this ground will also be barred from withholding of removal for “reasonable grounds for regarding the [applicant] as a danger to the security of the United States”.