Who is eligible for asylum?
If you have been persecuted in the past, or have a well-founded fear of future persecution in your native country, or country of last habitual residence, due to race, religion, political opinion, nationality or affiliation with a particular social group, you may be able to apply for asylum in the U.S. You must be unwilling or unable to return to your native country, and your native country must be unwilling or unable to protect you from persecution.
If your claim for asylum is based on persecution due to your affiliation with a particular social group, the group must be well-defined group that the society as a whole considers to be a group. Your group should be seen as permanent, or one that is fundamental to your identity or human rights. Examples of social groups U.S. courts have recognized are homosexuals, women and children who have escaped from slavery, women subject to honor killings, and families.
To apply for asylum you must be either in the U.S. or at the U.S. border. Your spouse and children under 21 may also apply for asylum based on your asylum relief.
However, if you have participated in persecuting someone else because of his or her race, religion, political opinion, nationality or affiliation with a particular social group, you are not eligible for asylum. If you have been convicted of a serious crime, are considered a danger to the U.S., you are not eligible either. Nor can you reapply for asylum if a previous application was denied, unless conditions have changed that would make you eligible for asylum.
What constitutes persecution?
Immigration officers consider the totality of the circumstances to decide whether negative treatment constitutes persecution. There is no set rule as to what constitutes persecution, and each individual case differs. Physical violence, such as rape, assault or arrest, torture, threats, confinement, and substantial economic disadvantage can all be manifestations of persecution, as well as psychological harm. Harassment or discrimination alone will not be considered persecution, but can exist concurrently with other forms of harm.
What is the application process?
To apply for asylum status from within the U.S., you need to submit an Application for Asylum and for Withholding of Removal (Form I-589) and supporting documents to U.S. Citizenship and Immigration Services. If you are already in removal proceedings, then you should file your application with the Immigration Court or Board of Immigration Appeals instead.
You have one year from your date of entry into the U.S. to file your asylum application. This one-year time limit can be extended if exceptional circumstances beyond your control prevent you from filing your application within that one year. Another exception exists if the conditions in your native country have changed, which then cause you to seek asylum status. If a previous application for asylum was denied, you will need to show that circumstances have changed that affect your eligibility.
You should submit a number of supporting documents along with your completed Form I-589. These documents include proof of the conditions in your native country and of facts specific to your claim, such as newspaper articles, medical records, pictures, and statements from witnesses. You also need to include proof of your relationship to family members you have included in your application, passport photos and copies of passports and travel documents of yours and your family members included in your application. You should also include any other identification documents you have, like driver’s licenses and birth certificates. Any document in a foreign language must have a certified English translation.
After you submit your application, you will have an interview. You may be represented by your lawyer at the interview, and can also bring witnesses. At the interview you have to show that you have been persecuted in the past or why you have a credible fear of persecution if you return to your native country. The interviewer will evaluate your credibility and your fear of persecution, so it is advisable that your testimony and corroborating evidence be consistent. If there are any inconsistencies, be prepared to explain those inconsistencies. A frivolous asylum application will permanently prevent you from seeking any other immigration relief such as adjustment of status or cancellation of removal.
Once your application for asylum is approved you will be eligible to work in the U.S. and eventually apply for your green card for permanent residency.
Withholding of Removal
If you are already in removal proceedings, you may also apply for withholding of removal. The U.S. government cannot deport you to a country where your life or liberty would be at stake because of your race, religion, nationality, political opinion, or membership in a particular social group. If you can show that it is more likely than not that you would be persecuted if you were to return to your native country, then your petition for withholding of removal must be granted. However, if you have participated in persecuting someone else because of his or her race, religion, political opinion, nationality or affiliation with a particular social group, you are not eligible for asylum. If you have been convicted of a serious crime, are considered a danger to the U.S., you are not eligible either.
Once withholding of removal has been granted, you can stay in the U.S. and work until the government finds another country willing to accept you. You will not be able to apply for permanent residency based on the withholding of removal, nor will you be able to re-enter the U.S. if you leave the country.
The United Nations Convention Against Torture (CAT)
The CAT allows for protection from torture or fear of torture by government officials or others acting within an official capacity. You do not need to show any fear of persecution due to your race, religion, nationality, political opinion or membership in a particular social group. However, you must be able to show that it is more likely than not that you will be tortured if you return to your native country.
If you are granted relief under the CAT, you will be able to live and work in the U.S. However, you will not be eligible to apply for a green card for permanent residency, nor be able to return to the U.S. if you leave the country. Furthermore, although the U.S. will not deport you to your native country, if the U.S. finds another country that will accept you, you can be deported to that country.
Why Getson & Schatz?
Our lawyers at Getson & Schatz can help you through the asylum application process. Our job is to paint an accurate picture on your behalf for why you should be granted asylum. We can help to fill out your application, gather evidence of what happened to you and your family that shows your well-founded fear of persecution, conduct research on your behalf to strengthen your application, such as local country conditions, and corroborating evidence of persecution. We work with you to ensure that your application is complete, accurate, consistent and credible.