POLITICAL ASYLUM

Historically, the United States has been known as the beacon of freedom in the world, as it has accepted refugees and people escaping oppression from all parts of the world. The asylum laws have been a mainstay of U.S. immigration. 8 U.S.C 1158, §208 governs the process of applying for political asylum. Under §208 any alien who is physically present in the United States or who arrives in the United States whether the alien is expected or not may apply for asylum.

Eligibility for asylum. To qualify for asylum the applicant has the burden of proof and must show that he or she has suffered or will suffer on account of his or her race, religion, national region, nationality, political opinion or membership in a particular social group, by the government of his or her country or any group that the government of his or her country can not or fail to control. Any harm suffered or feared on account of any of these specified 5 grounds is considered to be persecution. Not every act by a foreign government on account of these grounds constitutes persecution. Fear of persecution must be subjective and objectively reasonable. What this means is that a reasonable person in the applicant’s position will be afraid or unwilling to return under the circumstances. An alien who is afraid or unwilling to return to his or her country on account of the enumerated grounds should consult an immigration attorney.

Time Limit. An applicant for asylum must file the application within one-year of arriving in the United States. The applicant has the burden of proving that he or she filed the application within one year. Useful evidence include, but are not limited I-94 entry card, visa and entry stamps on passport, flight tickets, etc. We have also used circumstantial and ancillary evidence such as medical records for procedure performed outside the U.S. within one year!

Firm Resettlement. Any alien who has firmly resettled in another country is ineligible for asylum in the United States. Firm resettlement means that the alien has legal or quasi legal status in such third country. Simply stated, an alien who has refuge in another country is not entitled to asylum in the US just because he or she likes it better in the U.S.

Asylum Application Process. An applicant for asylum must file Application for Asylum and Withholding of Removal (Form I-589). There is no filing fees for filing Form I-589, which must be submitted in 3 copies, along with any supporting evidence that must be translated if it is in a foreign language.

How to “Win” Asylum Case
After an applicant files the (Form I-589) with the proper USCIS Service Center that has jurisdiction over his or her state of residence, the alien will receive a receipt notice with a priority date. Following the receipt notice, the alien will receive notice to appear for biometric appointment at the nearest USCIS district office.

Asylum-based Work Permit/Employment Authorization. An applicant for asylum is eligible to receive employment authorization while the asylum application is pending if USCIS fails to interview the applicant within 150days of filing his or her application. 8 CFR §208.7. Once the alien’s asylum application is received by the USCIS as properly filed, it “starts the clock” on the 150days. Any cause for delay in the processing of the application on the part of the applicant “stops the clock”. After 150days of filing the application for asylum, the alien becomes eligible to file for employment authorization (Form I-765). The first employment authorization application based on asylum is free and subsequent application must be filed with the regular filing fees.

Asylum Interview Process. Asylum interview is very important and can be the difference between becoming legal in the United States or being referred to immigration court for removal. It is very important to be prepared and knowledgeable about your claim. Most asylum officers are highly educated and tend to have academic strong background either on the issues presented in the applicant’s claim or the applicant’s part of the world. The applicant should therefore assume that the interviewer has background information, even if the interviewer pretends not to. It is important to arrive at your asylum interview early to avoid being late. The purpose of the interview is to go over the application, but most importantly to assess the applicant’s credibility. The applicant must be aware of the factors that can influence the finding of credibility, and remember that the interviewer must personally believe the claimed events to find the applicant, credible. Dress appropriately but wear clothes you are comfortable in. Some applicants have been known to overdress and then sweat in front of the interviewer who may mistakenly think the applicant’s sweating is as a result of deception rather than the simple reason that the alien is hot or uncomfortable in the outfit. Maintain eye contact with the interviewer throughout the interview. Explain your claim clearly to the interviewer and be consistent with the information on your I-589 and any supporting documents. Be sure that all your documents in foreign language are translated by a competent translator. The most crucial factor in winning asylum is the applicant’s explanation of how, who, when, where, why! Detailed recollection of events is very important. When you testify to an event, be sure to maintain eye contact with the interviewer and tell your story in terms of how the event happened, who was involved, when it happened, why you believe it happened. Listen to the question the interviewer asks before answering; you cannot give an accurate answer to a question you don’t understand.  If you do not know the answer to a question, it is best to admit that you don’t know.

At the end of the interview, the officer will tell you that you will hear from the Asylum Office, as the case is not decided at the interview. The applicant will receive the decision in the form of “recommended approval” or “a referral” to the immigration court. If the applicant receives a recommended approval, final approval is given after the background check is completed, but the approval date is the date of recommended approval. If the asylum application is not granted, it referred to the immigration court where the immigration judge reviews the whole application “de novo”, meaning afresh. The asylum interviewers sometimes make “adverse credibility finding”, meaning that the alien is not credible. This usually raises red flag to the government lawyer and the judge that the applicant is not credible and therefore should not be believed. More importantly, the asylum notes by the asylum officers give ammunition to the government lawyer for cross-examination of applicants.

Frivolous Asylum Claim. An asylum applicant who files an application based on a fabricated claim or story faces a lifetime bar to any immigration benefit under the Immigration and Nationality Act.  Just being denied asylum because an applicant is ineligible, failed to meet burden of proof or is found to not credible do not mean the application is frivolous. To be frivolous, the court must make a finding that material portions of an applicant’s claim were intentionally fabricated. Therefore, making up a story to get asylum is dangerous and should not be tried.