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Application for Asylum

Any person who is physically present or arrives in United States irrespective of his or her immigration status may apply for asylum in accordance with Immigration and Naturalization Act (INA), Section 208 and 235. An alien can apply for asylum in three scenarios: 1) upon arrival at the United States border (i.e. airport, land crossing); 2) after arrival, usually within one year (unless changed circumstances apply); and 3) during removal / deportation process as a defense to removal (usually within one year of admission to the United States). Grant of asylum requires diligent work by knowledgeable attorneys who are experienced in handling asylum applications. The process involves multiple fillings, immigration court hearings that can span years and possibility of appeals. Our attorneys are experts in handling asylum applications. The circumstances of each applicant are different, therefore, we will work to devise a successful strategy that specifically fits your situation. Remember, asylum is a very complicated process that requires proof of many factors, our attorneys will do everything possible under the law to ensure that your Asylum application is approved.       

Asylum Eligibility and Procedure - AN OVERVIEW    
An immigrant is eligible for asylum if he or she qualifies as a refugee. See INA 208(b)(1). A refugee is defined in INA 101(a)(42)(A) which states that a refugee is “any person [who] is outside any country of such person’s nationality or . . . any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable to unwilling to avail himself or herself of the protection of that country because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”            

Asylum officer or an immigration judge first must determine whether an alien has met his burden of proof of establishing that he/she was in fact persecuted or has a well-founded fear of being persecuted in the future. (See 8 CFR 208.13 stating that burden of establishing eligibility is on the applicant). One required element of persecution is a showing that persecution was (or is, or will be) officially sanctioned by the government. However, in Shah v. Islam it was stated that persecution can include nongovernmental violence that is not stopped by government action. It is important to remember that limiting access to education or certain jobs will not be considered persecution, (see Ahmed v. Ashcroft where Court noted that mere discrimination is not persecution). Furthermore, in one case (which many consider dubious) BIA held that if one can escape persecution by keeping quiet, persecution will not be found. See Gay Doctor Case. Additionally, past persecution, perhaps by itself, can suffice. Some courts view it as something which creates an assumption of future persecution.

In the absence of past persecution or irrespective of it, an alien might still qualify for asylum if they can establish well - founded fear of future persecution. The well – founded fear looks at subjective point of view and determines objectively if it is rational. Subjectively, the applicant must show that his or her fear is authentic. Objective component requires a showing by credible and specific evidence that would substantiate a reasonable fear of persecution. Most importantly an applicant doesn’t need to show that he or she will be individually singled out for persecution if that applicant can establish that there is a pattern or practice of persecution in his or her native country, and that her or his fear of persecution upon return is reasonable because the persecuted group of persons is similarly situated to the applicant. See 8 CFR 208.13(b)(2)(iii).   

 Assuming an alien applying for asylum can establish persecution or well-founded fear of one, asylum officer or immigration judge next must determine whether that persecution or fear of one is on account of race, religion, nationality, membership in a particular social group or political opinion. Under Fatin standard in order to qualify for asylum based on membership in a particular social group, an alien must 1) indentify a group that constitutes a particular social group; 2) establish membership in that group; and 3) show persecution or well-founded fear of persecution based on that membership.  One must remember that social groups must have existence other than the fact of persecution. What constitutes that existence is unclear due to a split in Federal Court. In Matter of Acosta (BIA 1985) (and also echoed by Justice Alito in Fatin) particular social group includes individuals bound together by a characteristic that is either immutable or so fundamental to their identity that they should not be required to change it. Under that reasoning Court in Acosta found no social group where members of a taxi cooperative alleged group persecution. Court in Sanchez – Trujillo followed a slightly different approach when it stated that for a social group to be found there should exist a voluntary associational relationship which imparts some common characteristic that is fundamental to their identity. Later the 9th Circuit added “or united by an immutable characteristic or one fundamental to the members’ identity. Nevertheless, for the purpose of identifying social group most court will turn to Acosta definition which is in itself difficult because it requires a subjective value judgment. 

 

Alternatives to Asylum

Temporary Protected Status
A variety of other alternatives to asylum do exist. One such alternative is a grant a Temporary Protected Status (TPS) under INA 244. This remedy authorizes the Secretary of Homeland Security to provide temporary protection to nationals whose countries are in state of civil upheaval or natural disasters. The Secretary of DHS has the discretion to grant TPS, however, under INA 244(b)(1) one of three conditions must be met before the Secretary can exercise that discretion.

Convention Against Torture
Convention Against Torture (CAT) is another immigrant can pursue to avoid deportation. CAT, which US ratified in 1994, forbids any signatory from expelling any person to a country if there are substantial grounds for believing that that person would be in danger of subjected to torture. However, even if some individuals can show that they will be tortured, benefits of CAT will be limited since US definition of torture, among others, requires it to be inflicted with consent of a public official. See 8 CFR 208.18(a).

Restriction on Removal
Another type of relief is called restriction on removal (see INA 241(b)(3)(A)), however, since it requires persecution on the same basis as asylum, it is also can be problematic.


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