Three types of relief exist for foreign nationals who fear persecution in their home countries on the grounds of race, religion, national origin, political opinion, or membership in a particular social group:
- Refugees -persons brought in from outside the U.S. under quotas set by the President for certain regions. Results in permanent residence.
- Asylees -persons who have already physically come to the U.S. Usually results in permanent residence.
- Withholding of Removal -persons in the U.S. who don’t qualify for asylum. Results in uncertain, indefinite arrangement.
In addition, the Convention Against Torture prevents removal of persons who would probably be tortured in their home country, and not necessarily on account of one of the 5 grounds required for refugees, etc., above.
Statistics from the immigration service (“USCIS”) have reflected clearly that persons represented by a lawyer are far more likely to be granted asylum than those who are not represented. We can help prepare and present the evidence to pursue any of these claims to relief.
For refugee, asylum, or withholding, there are three main requirements in common about the fear of harm:
- Persecution is what the alien fears– not just mild misfortune, justified punishment, or required military service. Persecution can include confinement, torture, severe economic hardship, relegation to substandard dwellings, exclusion from institutions of higher learning, enforced social and civil inactivity, passport denial, constant surveillance, pressure to become an informer, mental abuse or threats, and coercive population control measures. The persecutor must be the government, or persons or organizations the government is unable or unwilling to control.
- The fear is well-founded. For asylum, the alien must show a “reasonable possibility” of being persecuted for one of the five reasons, which may mean as low as 10% probability. For withholding, the persecution must be “probable,” which means more than 50% probability. Usually this involves showing either a pattern of persecution of others similarly situated or the applicant’s own past persecution. The threat of persecution must cover all parts of the home country where the person could be allowed to go.
- The persecution feared is on account of one of the five grounds, at least in part. The alien must show that a “central reason” for the persecution, in the motivation of the persecutor, is the victims’ race, religion, national origin, political opinion, or membership in a particular social group. Natural disasters, economic decline, and even cruel treatment that is not based on one of the five grounds will not count. A persecutor’s mistaken imputation of political opinion on the victim can qualify. “Membership in a particular social group” means persons who share a common, immutable characteristic,” such as sex, color, kinship or in some cases shared past experiences such as land ownership, military service. “Immutable” for this purpose means a characteristic that cannot be changed or should not be required to be changed, which has been held to include homosexuality.
Someone who himself has persecuted others on one of the five grounds cannot be eligible. The opportunity to have “firmly resettled” in another country along the way to the U.S. may prevent approval. While most criminal and national security grounds of inadmissibility apply, many other inadmissibility grounds do not apply at all, and others can be waived specially.
It is hard to prove what someone might do far away, how likely it is they might do it, and why they might do it. The most important evidence is the detailed application form and a credible, consistent statement by the applicant at the interview or hearing. It is very important to have as much corroborating information as possible about the applicant’s past treatment or about the country conditions relating to the type of persecution, such as documents of critical facts, statements from other people, expert analysis, and news reports. The USCIS adjudicator or Immigration Judge may rely heavily on the State Department’s “Country Reports” about the human rights practices of each country. Various other reports available through the State Department’s Bureau of Democracy, Human Rights and Labor can also be persuasive, since they are authored by the U.S. government. Other groups collect news reports and even create their own reports about various countries’ human rights practices, and such resources include:
- The USCIS Resource Information Center: reports prepared for asylum officers concerning various countries’ conditions, plus other resources linked on a separate page for each country.
- HURISEARCH: huge searchable collection of over 600 NGO sources/collections in 58 languages.
- UNHCR Newswire: search current news from several worldwide media sources.
- Amnesty International: innumerable reports and advocacy programs.
- Human Rights Watch: same.
- U.S. Commission on International Religious Freedom: Often goes farther than State Department in criticizing “Countries of Particular Concern.”
- Asylumlaw.org: allows search of 15 human rights databases at once, plus innumerable other resources.
Each year, the President makes an allotment for refugee admissions for different regions or countries of the world. The USCIS website describes the process for application and selection of individual refugees, which is influenced by selection priorities descending from individual referrals from UNHCR-related non-governmental agencies or embassy-related persons (for any nationality), groups of special concern to the U.S., and family reunification cases (spouse, unmarried child under 21, and parents of an admitted refuee or asylee). This selection takes place outside the U.S., and usually outside the applicant’s home country (except Cuba, Vietnam, and the Soviet Union), which makes personal appearance on behalf of a client difficult, but immigration attorneys still can be helpful in eliciting a prospective applicant’s story, selecting the most important information, and preparing a package of papers for presentation to the USCIS or one of the agencies (particularly UNHCR and U.S. consulates) who help select applicants for USCIS consideration. The spouse and unmarried minor children under age 21 may derive status with the refugee or follow to join after the refugee files Form I-730 with USCIS.
Once a refugee is admitted to the U.S., he normally enjoys financial and other resettlement assistance through one of the many voluntary agencies who receive government funding for that purpose. The I-94 card he receives upon entry can serve as evidence of employment authorization for I-9 purposes for 90 days, but he should immediately file Form I-765 with USCIS for an employment authorization card. He may also use Form I-131 to apply to USCIS for a refugee travel document that functions similarly to a passport.
After accumulating one year physically in the U.S. after admission, the refugee may apply for adjustment of status to permanent residence under special procedures. The refugee becomes eligible for naturalization five years after initial admission as a refugee.
Asylum can be claimed by someone who has made it at least to a U.S. border or airport or has already physically entered the U.S. The application is always made through Form I-589. Someone who is maintaining lawful status in the U.S. can make an “affirmative” claim to the USCIS that is reviewed by an Asylum Officer, whose decision can be appealed to the Board of Immigration Appeals (BIA). If the applicant is not in lawful status at the time of making the application to USCIS, and the Asylum Officer does not approve the claim, the applicant is placed directly into removal proceedings, where the claim can be renewed before the Immigration Judge and, if denied, appealed to the BIA. Still other aliens who are placed into removal proceedings for some other reason may file a “defensive” asylum application in the Immigration Court. Someone facing expedited removal at the border or in connection with a prior removal order still must be allowed to request a “credible fear” hearing to see if any basis for asylum exists.
Until 1995, many people who had fallen out of status applied for asylum even with weak claims, because they would be allowed work authorization while their cases were piled into the monstrous backlog of hundreds of thousands of cases awaiting decision by an asylum officer. Some of those backlogged cases are still backlogged, and the applicants continue to receive annual work authorization cards. 1995 reforms required expedited consideration of new applications, eliminated most chances for interim work authorization, and required “referral” of unapproved claims to Immigration Court–thereby making a weak asylum application the fastest path to removal. With the stakes this high, advice and assistance from an immigration attorney is critical in evaluating all options and, if asylum is among those chosen, crafting the application papers and presenting testimony. In considering chances of success, one can view USCIS’ statistical information on asylum adjudications, recognizing that the published data is not absolutely current and may reflect conditions that have since changed.
A 1996 law required that asylum applications be made within one year of entering the U.S., but there are exceptions for changed circumstances (in the conditions giving rise to fear, and in the characteristics of the alien that might make him a target of persecution) and a host of other situations, including maintenance of lawful nonimmigrant status in the meantime, that might have prevented a timely filing. Someone with a good asylum claim should not fail to pursue it based on the one year filing rule without advice from an immigration lawyer concerning a possible exception.
USCIS website provides a helpful overview of asylum, application procedures, and obtaining asylum status for spouse and children. Asylum is a “discretionary” remedy, so that, even if all other eligibility rules are met, the decision maker can weigh more general factors and deny asylum. This underscores the importance of a well documented case.
Once asylum is granted, the asylee can obtain interim work authorization and a refugee travel document. One year after asylum approval the asylee may apply for adjustment of status to permanent residence under special procedures. A previous statutory limit of 10,000 asylee adjustment per year has been eliminated. An asylee becomes eligible for citizenship 4 years (instead of 5) after adjustment of status was approved.
If someone is “likely” to be persecuted on one of the 5 grounds but otherwise fails to qualify for asylum (such as an inadmissibility ground or an unfavorable exercise of discretion) and faces removal before an Immigration Court, he may be granted “withholding of removal.” This provides nothing but a begrudging interim restraint from actual removal to the particular country of feared persecution, without permanent residence. The asylum application itself automatically doubles as an application for withholding. Family members cannot benefit from an approval. Work authorization is available, but travel authorization is not.
If the harm someone fears is not based on one of the 5 grounds but is bad enough to be called “torture” intentionally inflicted by or with the consent of an official of the home country government, he may be considered for a slightly different kind of withholding of removal with similarly tenuous effect. If he is subject to certain criminal grounds he may instead receive “deferral” of removal including detention.
Baker Donelson’s Immigration Group has wrestled repeatedly with the changing nuances of the criteria for refugee and asylum status and is experienced in crafting the assembling the documentation and testimony needed to win a case. We prepare affirmative asylum claims, attend asylum officer hearings, present asylum claims in Immigration Court proceedings, appeal cases to the BIA and, where appropriate, to federal appeals courts, all the while evaluating any other forms of available relief. We assist clients and their relatives abroad in seeking consideration as asylees and refugees. We are aware that clients in these cases are dealing with difficult, traumatizing and inhumane treatment in their home countries, where some relatives may remain in fear.
Consult with us for assistance with a case.