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What Is Asylum?
Asylum is a process where a person leaves her native country to another country seeking protection and refuge. The person who applies for asylum is called an asylee. Each year, there are thousands of people applying for asylum in the U.S. According to National Immigration Forum, 220,000 asylum applications were filed in 2016.
Types of Asylum.
There are two types asylum in the U.S. – Affirmative Asylum and Defensive Asylum.
Affirmative Asylum is what people hear often on the news, something like people arriving at or crossing the U.S. border and apply for asylum. The law, 8 U.S. Code Section 1158(a)(10 requires the asylum seeker must be physically present in the U.S. in order to apply for asylum. Thus, if you are outside the U.S. territory, you cannot apply for asylum. The U.S. territory can include U.S land and waters, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Thus, individuals are physically present in those areas can apply for asylum. In the past, there were confusions about whether one can apply for asylum in the U.S. Embassies or Consulate. The short answer is no. However, U.S. Embassies and Consulates are privileged with immunity from hosting countries.
To be eligible for asylum, applicants must demonstrate that (1) he is unable or unwilling to return to her home country because of past persecution, or (2) a well-founded fear of persecution because of her (a) race, religion, nationality, membership in a particular social group, or political opinion. Generally, affirmative asylum must be filed within the first year of arrival in the U.S. If you need to file an asylum application after year of your entry in the U.S. you must meet certain requirements. (1) You could not apply within one year because changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing. (2) You filed within a reasonable amount of time given those circumstances.
The other type of asylum is called Defensive Asylum. This is an application when someone is facing deportation requests asylum in hope to remain in the U.S. Affirmative Asylum is filed with the U.S. Citizenship and Immigration Services; whereas Defensive Asylum is requested at an immigration court with an immigration judge. The immigration judge will hear arguments from both the petitioner and the U.S. government as to why the petitioner is eligible for asylum.
What Consitutes Persecution?
The Immigration and Nationality Act does not define persecution. In the published case laws, Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004), the court attempted to characterize Persecution as an extreme concept where infliction of suffering or harm upon those who have different because of race, religion, or political opinion in a way regarded as offensive. This broad definition of persecution is fact dependent. No specific actions or inactions can be deemed persecution per se. The Court in Kovac v. INS, 407 F2d 102, 107 (9th Cir. 1969) also found that minor disadvantages or trivial inconveniences do not rise to the level of persecution.
Does Threats Constitute Persecution?
Usually, threats of serious harm, particularly when combined with confrontation or other mistreatment, may constitute persecution. The 9th Circuit Court in Kaiser v. Ashcroft, 390 F.3d 653, 658 in 2004 concluded that threats on someone’s life, within a context of political and social turmoil or violence, have long been held sufficient to satisfy an applicant’s burden of showing fear of persecution. What really matters is that whether the group making the treat has the ability or the will to carry it out. Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004). The court in the past has recognized that when a person is being forced to flee home in face of immediate harm or death may constitute persecution, as long as the wrongdoer’s actions are motivated by a protected ground (race, religion, nationality, membership in a particular social group, and political opinion).
If past persecution is established, a rebuttable presumption of a well-founded fear arises, and the burden shifts to the government to demonstrate that there has been a fundamental change in the circumstances such that the applicant no longer has a well-founded fear. Therefore, it is important to establish through evidence that you have suffered persecution in the past.
Source of Persecution.
Random and isolated criminal acts done by criminals do not establish persecution. The state actions are not required to prove persecution. But an organized and targeted action done by an organization is usually necessary to prove persecution.
A key component of the asylum process is attending the asylum interview. Before the interview, applicant will receive an interview notice detailing the time, location, documents or interpreters to be brought to the interview. During the interview, the USCIS adjudicator will ask a wide range of questions regarding the application. The goal of the USCIS adjudicator is to determine whether the applicant is truthful and whether there is well-founded fear of future prosecution and whether there has been persecution in the past because of the applicant’s race, religion, nationality, membership in a particular social group, or political opinion.
Li Law Group has represented many clients in their asylum proceedings. Contact us at here.