For an immigration lawyer representing asylum seekers is one of the most challenging yet rewarding areas of immigration law because it requires a wide breadth of knowledge of a very complex area of asylum law. Practicing immigration asylum law is tremendously satisfying when a case is successful. It demands the ability to research and understand asylum seekers’ home-country conditions and personal circumstances. It requires locating and presenting human-rights experts. Asylum lawyers show acute sensitivity when dealing with a very diverse group of clients as well as exceptional advocacy skills. They must be able to present issues of life-changing, and often of life-threatening, magnitude before administrative appeals, judicial review and, if required, appellate relief. On this page, you will find an overview of the substantive law and procedures applicable to the process for asylum, withholding and deferral of removal.
The definition of the term refugee is found in Section 101(a)(42)(A) of the INA. The law for asylum and procedure is set forth in Section 201 of the INA. This section describes the requirements, procedures and time limits for filing an asylum application. It also sets forth the bars to asylum. In addition, this section explains the procedures for granting and terminating asylum status, employment authorization and the consequences of filing a frivolous asylum application. Section 235(b)(1) of the INA sets forth the procedures for expedited removal of asylum seekers arriving with false passports or entry documents, or even no documents at all. This category of asylum seekers must show a credible fear of persecution to qualify for asylum in the United States. Finally, Section 241(b)(3) of the INA allows the Attorney General of the United States to withhold, under certain circumstances, removal for people whose life would be in danger if returned to their home country.
International Refugee Law
The United Nations Convention Relating to the Status of Refugees issued in 1951 and the United Nations Protocol relating to the Status UN Protocol promulgated in 1967, which incorporated Articles 2 through 34 of the U.N. Convention, are the main international treaties that protect the rights of refugees. Similarly, asylees and refugees can seek protection under the Convention Against Torture. Under Article 3 of this convention, the United States has agreed not to return an alien to a country where he could be tortured.
Definition of Refugee
To qualify for asylum in the United States, a petitioner must meet the INA’s definition of a refugee to be eligible for the favorable exercise of discretion, and must not be otherwise barred from obtaining asylum. Under the INA, a refugee is:
[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or a political opinion.
In addition, the term refugee applies to any person who has undergone or fears a “coercive population-control program”, which means being forced to undergo an abortion or sterilization procedure.
Section 241(b)(3) prohibits removal or deportation of any alien from the United States if his life or freedom would be threatened in his home country on account of one of the same five grounds necessary for asylum. Specifically, the law provides as follows:
[T]he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion.
To qualify for withholding of deportation or removal, a person must show a “clear probability of persecution”, which is more than a fifty percent likelihood of persecution. The “clear probability” standard for withholding of removal is higher than that for asylum, which requires only a “reasonable possibility” of persecution. If an applicant meets the higher standard, withholding of deportation or removal is mandatory, compared to the granting of asylum, which is discretionary. A request for withholding of removal is country specific, because it seeks to withhold removal to a particular country where the applicant’s life or freedom would be threatened. Withholding does not confer protection from removal to any other country. A grant of withholding, however, does not result in permanent residency.
Bars to Withholding of Removal
Section 241(b)(3)(B) of the INA provides the basis for the bars to withholding of removal. An alien is not eligible for withholding of removal under certain circumstances if he:
is engaged in the persecution of others;
is a danger to the community after having been convicted of a particularly serious crime;
has committed a serious nonpolitical crime outside the United States;
is a danger to the security of the United States, for example, engaging in terrorist activity as set forth in INA §237(a)(4)(B);
was convicted of an aggravated felony (or felonies) for which he received an aggregate sentence of at least five years imprisonment.
Under the Convention Against Torture, the United States is prohibited from removing any person who demonstrates that it is more likely than not that the government of his home country or last habitual residence will torture him. The Convention Against Torture protects all individuals from torture. The term torture is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The Convention Against Torture does not apply to applicants who persecuted others, have criminal convictions or firmly resettled in another county. The applicants who are not barred by Section 241(b)(3)(B) are eligible for withholding of removal under this convention. This is a limited form of relief that temporarily prevents DHS from removing the applicant to a country where there is a substantial likelihood of torture. At any time, though, DHS may detain an alien who has been granted deferral of removal. DHS may also refuse the issuance of an employment authorization or may revoke deferral of removal status if it determines that the applicant’s life is no longer in danger or if an applicant commits a crime.
Difference between Asylum and Withholding of Removal
One can apply for withholding of removal at any time. A petitioner must apply for asylum within one year from the date of the arrival to the United States. A person applying for asylum does not need to file a separate application for withholding of removal or relief since an application for asylum automatically constitutes such an application. A spouse or child of an alien granted asylum may also be so granted as a derivative. There is, however, no derivative right to withholding of removal. If in the United States, a spouse or child of an asylum seeker should consider filing a separate asylum application to become eligible for withholding of removal.
Persecution means offensive infliction of harm or suffering to a victim. The persecutor is not required to have a subjective intent to punish or harm the victim. A persecutor may be either a government or a group or individual that it is unable or unwilling to control. Persecution encompasses a broad range of acts and is determined by the totality of the circumstances. Serious violations of basic human rights constitute persecution. For example, rape, economic deprivation, threatening a person’s life or freedom, discrimination, harassment and detention coupled with physical torture all constitute forms of persecution. Conversely, legitimate prosecution for crimes is not persecution. Mandatory service in the military does not constitute persecution. Likewise, fear of a coup d’état is not a basis for asylum, whereas harm inflicted during the coup may, under certain circumstances, be considered as such.
Once an alien shows past persecution, he becomes a refugee eligible for asylum. Once he becomes a refugee, the law governing asylum and withholding of removal creates a presumption of a well-founded fear of persecution. This presumption, however, must be supported by written and oral testimony of future persecution so that an immigration official or judge may exercise discretion in granting the asylum or withholding of removal to the alien. Per 8 CFR §208.13(b)(1)(i), once an applicant shows past persecution, the burden shifts to DHS to show, by “a preponderance of the evidence”, that:
the applicant no longer has a well-founded fear of persecution because there has been “a fundamental change in circumstances” under asylum law or the applicant will not be threatened upon return to the country of persecution under withholding of removal law; or
the applicant could avoid future persecution by relocating to another part of the applicant’s country if it would be reasonable to expect the applicant to do so. DHS usually uses reports on country conditions and BIA may take official notice of changes to such conditions to satisfy this requirement.
Despite changed country conditions, an applicant who has proved past persecution may still receive a grant of asylum if he demonstrates compelling reasons for his unwillingness to return to his home country. In this case, the applicant must prove that this unwillingness is caused by the severity of the persecution. The courts require past persecution be extremely severe before granting asylum in these circumstances. An asylum applicant who has demonstrated persecution may also receive a grant of asylum even without a well-founded fear of persecution if the applicant can prove that there is a reasonable possibility that he may suffer other serious harm upon removal to his home country.
If a person has not suffered persecution, he is still eligible for asylum or withholding of removal if able to show a well-founded fear of future persecution. The alien must show a subjectively genuine fear of returning to the country of persecution, but this fear must be objectively reasonable and supportable. An alien must provide expert testimony and evidence related to the country’s conditions, human-rights violations and persecution of people similarly situated to the applicant.
To prove a well-founded fear, an applicant must show that:
he has a belief or characteristic that a persecutor seeks to overcome;
the persecutor is aware or could become aware that the applicant has such belief or characteristic;
the persecutor has the capability to persecute the applicant; and
the persecutor has the inclination to persecute the applicant.
According to 8 CFR §208.13(b)(2), to establish a well-founded fear of persecution, an applicant needs only to show that “there is a reasonable possibility of actually suffering such persecution.” For withholding of removal, however, there is a higher burden of proof. An applicant must demonstrate that it is more “likely than not” that he would be persecuted on account of one of the grounds listed in the refugee definition in 8 CFR §§208.16(b)(2). If there is a practice or pattern of persecution, then an applicant need not be singled out for maltreatment but nonetheless needs to show his inclusion in the group being persecuted.
If an applicant is able to avoid persecution in his home country by relocating to another area of that country, then adjudicators may consider the possibility of internal relocation in the decision to grant asylum. Although the adjudicator can find that, by a preponderance of the evidence, internal relocation is a viable alternative, the applicant may rebut this presumption. DHS, however, must prove that, taking into consideration all the circumstances, it is reasonable for the applicant to relocate to his home country. An applicant who has not established past persecution, on the other hand, has the burden of establishing that it is not reasonable to relocate unless the persecution is by a government or is government sponsored. In considering the reasonableness of internal relocation, the adjudicator must take into consideration the following factors:
possible serious harm to the applicant;
any ongoing civil strife within the country;
administrative, economic or judicial infrastructure;
geographic limitations; and
social and cultural constraints, such as age, gender, health and familial ties.
If it is unreasonable to relocate an applicant, then the alien must show that the risk of persecution exists countrywide. The adjudicator will consider the intent or ability of the persecutor to act countrywide. Such factors as the history of that particular part of the country and its size are important. That is, if the country is small, then it is impossible to be safe anywhere within its borders.
Persecution on Account of One of the Five Statutory Bases
To qualify for asylum and withholding of removal, persecution must be on account of one of the five bases in the statute:
membership in a social group that shares common, immutable characteristics, or
political opinion based on the person’s affiliation in a group or familial nexus.
On May 11, 2005, the REAL ID Act made amendments to the legal standards for asylum applications and judicial review of final removal orders that were issued before, on or after the date of its enactment. Under the REAL ID Act, which amended the INA, the applicant must show that race, religion, nationality, membership in a particular social group or political opinion was or will be the primary reason for the applicant’s persecution in his home country.
Mandatory Grounds for Denial of Asylum and Withholding of Removal
Section 208(b)(2)(A) sets the mandatory grounds for denial of asylum and withholding of removal. These grounds are:
Persecutor of Others. A person who assisted in the persecution of others cannot meet the definition of a refugee.
Conviction of a Particularly Serious Crime.A person convicted of an aggravated felony is considered to have been convicted of a particularly serious crime. The term “aggravated felony” encompasses numerous crimes more specifically defined in Section 101(a)(43) of the INA. Note, however, that there is no such bar under the Convention Against Torture.
National Security Risk.A person may not receive asylum or withholding of removal if there are “reasonable grounds” for regarding him as a “danger to the security of the United States.”
Serious Nonpolitical Crime.A person is not eligible for asylum or withholding of removal if “there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States” prior to arrival.
Terrorist Activity.A person is inadmissible or removable for terrorist activity unless the Attorney General determines “that there are no reasonable grounds for regarding the alien as a danger to the security of the United States.” This ground is extremely broad and may possibly apply to any activity supporting a terrorist organization. The terrorist activity bar has been further expanded by the REAL ID Act.
Additional Mandatory Grounds for Denial of Asylum Only
One-year Filing Deadline. An applicant is not eligible for asylum unless he has demonstrated, by clear and convincing evidence, that his application for asylum was filed within one year of arrival in the United States. There are two exceptions to this rule: (1) “changed circumstances which materially affect” an applicant’s eligibility for asylum; and (2) “extraordinary circumstances relating to the delay in filing an application within the period specified.”
Safe Third Country. A person is not eligible for asylum if he “may be removed, pursuant to a bilateral or multilateral agreement, to a county…in which the alien’s life or freedom would not be threatened” on account of one of the five grounds and where the person “would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” The United States has such an agreement with Canada.
Previous Asylum Application Denial.A person is not eligible to receive asylum if he previously applied for it but was denied. An exception to this is the aforementioned “changed circumstances which materially affect an applicant’s eligibility for asylum”.
Granting asylum is discretionary even after a person has shown persecution or a well-founded fear of future persecution. The adjudicator may consider other factors in making the discretionary decision to grant asylum, such as an applicant’s use of fraud to enter, criminal record and deficient moral character.
Penalty for Frivolous Application
An alien who knowingly makes a frivolous application for asylum is permanently ineligible for any benefits under immigration law. Per 8 CFR §§208.20, 1208.20 an application is frivolous if “any of its material elements are deliberately fabricated.” Nevertheless, the applicant must be given sufficient opportunity to account for any discrepancies or implausible aspects of the claim.
People arriving at airports or other ports of entry with false, or bereft of, documents face expedited removal from the United States. A DHS inspector interviews these individuals upon arrival and removes them unless they indicate an intention to apply for asylum under Section 208 of the INA for fear of persecution in their home countries. In this case, the inspector refers them to a DHS asylum officer for interviews. Aliens seeking asylum upon arrival at airports are detained throughout this interview process. During the interview, they must show a “creditable fear of persecution”. If they fail to do so, then DHS will order them removed from the United States. Aliens seeking asylum may request a review of DHS’ decision. An immigration judge must review, within seven days, DHS’ decision that the asylee lacks a credible fear. DHS detains asylum seekers until there is a final determination on this issue. The same procedures are applicable to people who have not been admitted or paroled unless they have been continuously present in the United States for the previous two years. Note, though, that there is an exception to expedited removal for those with Cuban nationality.
In accordance with Section 235(b)(1)(B)(v) of the INA, a “credible fear” test means that “there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under Section 208.”
Filing the Asylum Application
An alien has two ways to seek asylum with DHS or an immigration judge. One way is for an asylee in the United States whom DHS has not arrested or referred to the Immigration Court to file with DHS. This is known as an affirmative application since the person coming forward affirmatively files for asylum before being arrested by DHS. Conversely, a person whom DHS has arrested or referred to Immigration Court files a defensive asylum application with the immigration judge. These two avenues overlap depending on the facts of each asylum seeker. A person files for asylum on Form I-589, Request for Asylum and for Withholding of Removal. He may include his spouse and children in the application. Under the Child Status Protection Act, an unmarried child under twenty-one years of age of the date of the application continues to be a child for purposes of joining the parent while the parent’s application is pending.
Unlawful presence exception.
As soon as an asylum seeker files a bona fide asylum claim, the alien’s unlawful presence clock stops running. Denial or abandonment of an asylum claim is not determinative of whether the claim is bona fide. Unlawful presence that is accrued before the asylum application is filed is not erased by filing the asylum application, and it is still considered unlawful presence even after a grant of asylum.
Asylum Officer Interview
An asylum officer interviews an applicant to gather information to support the claim for asylum. An attorney may be present. The asylum officer assesses the claim in light of governmental and nongovernmental sources of information on the human-rights situation of the applicant’s country and may use materials from DHS’ Resource Information Center. Asylum officers have special, written guidance for adjudicating asylum claims for women and children.
Failure to appear for an interview before DHS or a hearing before an immigration judge without prior authorization or in the absence of exceptional circumstances may result in dismissal of an asylum application. If the applicant is unable to speak and understand English proficiently, he must bring an interpreter to the interview. If the asylum officer is not persuaded by the applicant, then he will refer the case to Immigration Court.
Immigration Court Hearing
Once the case is in Immigration Court, the parties are subject to cross examination and questioning under oath. The court creates a transcript of the proceedings that can be later used for the appeal.
Applicant’s Declaration and Credibility Determinations
In addition to Form I-589, the applicant must file a personal statement under penalty of perjury. It is crucial to work with an experienced immigration attorney who will assist in identifying the key factors and facts required for the claim. The court will assess the credibility of the applicant by comparing the applicant’s statement during the asylum interview and that made during the court hearing. Based on this, it is important to prepare thoroughly for this interview.
Under the REAL ID Act, the applicant may sustain his burden of proof without additional corroboration only if the adjudicator finds that the applicant’s testimony is credible, persuasive and refers to specific facts demonstrating that the applicant is a refugee. In addition, the adjudicator may weigh the applicant’s credible testimony with other evidence in determining whether the applicant has met his burden of proof. He may request additional evidence unless the applicant cannot reasonably obtain it. An adjudicator may base his credibility determination on the demeanor, candor and responsiveness of the applicant, his witnesses or the inherent plausibility of their testimony. Further, an adjudicator may base a credibility determination on the consistency between the applicant or witnesses’ oral and written statements, regardless of whether these statements were made under oath or when the statements were made, but considering the circumstances under which the statements were made, the internal consistency of such statements with other evidence in the record, and falsehoods or inaccuracies in such statements regardless of whether the falsehoods or inaccuracies go to the heart of the asylum claim. Under the REAL ID Act, there is no presumption of credibility if the adjudicator does not explicitly make an adverse credibility finding. The applicant or witness will have a rebuttable presumption of credibility on appeal.
To comply with the REAL ID Act’s requirements, an experienced immigration attorney will gather and submit detailed documents supporting the events of persecution described in the asylum application to establish the applicant’s credibility. The attorney will hire an expert on the country’s record of persecution if the Government’s reports indicate that there is no persecution in the applicant’s home country or materially downplays its severity or pervasiveness. He will also prepare notarized affidavits, expert testimony, summaries of reports from human-rights organizations, news articles and other materials in formats acceptable to the court.
DENIAL AND APPEAL
Board of Immigration Appeals
The court issues its oral or written decision within 180 days. Either side may appeal the decision by filing a notice of appeal with the Board of Immigration Appeals (BIA) within thirty calendar days after the Immigration Court’s decision. The notice of appeal must state specific reasons for appeal to avoid summary dismissal and cite authority if questions of law or fact are challenged. Each party will file a brief within thirty days. A party may request an oral argument, and BIA has discretion to grant an oral argument.
Motions to Reopen and Motions to Reconsider
An asylum applicant can only file one motion to reopen a final decision, which must be filed within ninety days of the final administrative order. A final administrative decision is a decision by BIA or the immigration judge for which no appeal to BIA was taken. The numerical and time limitations rules do not apply if the motion to reopen or reconsider is based on the changed circumstances in the alien’s country or order of removal in absentia. A third exception is when DHS agrees with the applicant to reopen the case.
A person may file only one motion to reconsider a final decision, and that motion must be filed within thirty days of the final administrative order. BIA, however, retains discretionary authority to reopen proceedings regardless of the time limits and has done so when there was a fundamental change in law.
Review by District Court
The applicant must file a petition for review within thirty days of BIA’s final order with the appropriate district court. Filing the petition for review does not stay the removal order unless the court so orders. Thus, if the applicant files a motion to reconsider that BIA denies, the applicant cannot appeal its original decision if the filing deadline has passed. Therefore, the applicant must file a petition for review and motion to reopen or reconsider at the same time.
The REAL ID Act further limited habeas corpus review. This review is barred when judicial review and jurisdiction to review is already excluded in the INA.
Grant of Asylum.
Once the applicant receives asylum, he can apply for lawful, permanent residency after having been in the United States for one year from the date of receiving asylum. His spouse and children under the age of twenty-one may also seek lawful, permanent residency by filing Form I-730, Refugee/Asylee Relative Petition, for each family member within two years of the grant of asylum. Since only 10,000 asylees can adjust per year, petitioners have to wait for years for adjudication of their applications for permanent residency. The REAL ID Act provides for elimination of the annual caps while the Act is being implemented in the next five years for the number of asylees who can adjust to lawful, permanent residency. This act also removes the annual cap on the number of applicants who can receive asylum based on resistance to coercive population control.