It is a special and exceptional immigration benefit that if granted leads to the permanent residency in the United States and is based on the applicant’s ability to show that the applicant has a well founded fear of persecution in his/her country of origin on an account of race, religion, nationality, membership in a particular social group or political opinion.
I. How do I qualify for asylum?
The Refugee Act of 1980, and subsequent modifications of it is incorporated into the Immigration and Nationality Act, provides that:
Any alien who is physically present in the United States or who arrives in the United States … irrespective of such alien’s status, may apply for asylum … (sec. 208 of the INA)
If you or anyone you know have been persecuted based on your race, ethnicity, social group, religion or political opinion and you have a well founded fear of going back to your home country because you will be arrested, tortured or killed you may qualify for political asylum in the United States.
What is persecution?
Individuals who seek asylum in the US must show that they can’t or are unwilling to return to their own country because of either persecution or a well-founded fear of persecution on account of either religion, nationality, membership in a social group, political opinion or race. Whether applying for asylum in the deportation context (i.e., as a defense to deportation in immigration court), or affirmatively (when a person isn’t in deportation proceedings and they apply to the US Citizenship and Immigration Services for asylum), the asylum applicant has to show that they’ve either been persecuted in the past based on one of five characteristics listed in the prior sentence, or that they’ve got good reason to fear it may happen in the future should they return to their home country. But determining exactly what constitutes persecution for purposes of asylum law can be a difficult undertaking, even for an experienced asylum lawyer or immigration judge. Because of this, persons considering seeking asylum in the United States should talk to an asylum attorney before applying or before appealing a denial of a claim for asylum – informing an asylum lawyer of immigration matters with which you’re dealing, including asylum matters, is the first step toward achieving your immigration goals.
Past persecution and future persecution
The asylum applicant must prove that he or she was the subjected of government agents persecution in the past, but is more likely than not to be persecuted again if the applicant is returned to his/her country.
Is it important who persecutes me?
Yes, the U.S. asylum law provides for protection from persecution by government agents – the asylum applicant must show that it was his /her government that persecuted the applicant or that the government was aware of this ongoing persecution and failed to adequately protect the asylum applicant.
What if I was harassed and persecuted by the mafia in my country?
Persecution by the mafia/organized crime usually does not constitute persecution per se, unless the government officials were aware of this persecution and/or promoted it or failed to help the individual.
What if I am afraid to go back to my country because of widespread criminal activity?
“Hay muchas maras en El Salvador, yo tengo miedo para regresar mi pais por que mara salvatrucha menace mi familia y quere recruitarme para estar traficante de drogas ” this is a common claim for Salvadoreans and other central American asylum seekers. Even though it is true that Mara Salvatrucha and other large organized crime groups freely operate in Central America and other regions of the world, asylum is usually denied if the only asylum claim that asylum applicant makes is fear of criminal activities, abductions, recruitment into gangs or fear of being robbed or killed by criminals. Only the failure of the government to protect an asylum applicant from criminal activity is sufficient grounds for asylum but in such cases the burden of proof is always on the applicant.
What if I will starve to death if I have to go back to my country?
Depressed economical situation in one’s home country is no grounds to seek asylum. That is, just because one’s country is not doing well economically is no reason to ask for Asylum in United States.
II. How do I file an asylum application in the U.S.?
If you believe that you qualify for asylum and you’ve been in this country less than one year you may apply for Asylum. To file for asylum it is necessary to seek assistance of a qualified attorney who will properly prepare your asylum application.
A WORD OF CAUTION – FAKE ASYLUMS, ASYLUM FRAUD
Avoid self-proclaimed non-attorney “asylum preparers” who claim to have “won” many asylum cases ! Such people usually do not have sufficient legal skills to provide competent legal representation and to properly prepare your application for asylum. Unfortunately, there has been too many fraudulent asylum cases prepared by uneducated, unprofessional self proclaimed asylum preparers whose incompetence and pure greed has resulted in individuals being deported and charged criminally for submitting fraudulent applications. These asylum preparers make up asylum accounts and subject innocent applicants to fraudulent investigations. Most times these petitions are illegible, inconsistent and are submitted without any proofs supporting once asylum application. Also, keep in mind that only an attorney can represent an asylum applicant in the immigration Court. These asylum prepares are not permitted to appear and argue before the immigration judge.
ASYLUM AND WORK PERMIT
Under U.S. immigration laws, only certain immigrants are allowed to work, usually after they apply for a work permit called an Employment Authorization Document (or EAD). Some years ago, asylum applicants were allowed to get an EAD as soon as they’d submitted their application for asylum and work while their case was being considered — but no longer.
Now, in order to be granted a work permit, you have to either win your asylum case (which may take several years if you go through a number of appeals), or be left waiting 150 days or more with no initial decision on your application from the asylum office.
Since winning your asylum case in order to get a work permit is pretty self-explanatory, let’s look at some unique issues raised by the second option — getting a work permit if there’s been no decision on your case within 150 days of your application.
Given that long waits are a common part of every type of immigration application, you would think you could count on 150 days passing without any decision on your asylum application. In practice, however, not many asylum applicants obtain a work permit this way. For one thing, the U.S. government tries very hard to make its initial decision quickly, so a number of applicants find that they’ve been referred to immigration court for a hearing, but have no legal way to find a job so that they can afford to hire an attorney. For another thing, the government is allowed to “stop the clock” (stop counting the 150 days) for a number of reasons, such as if you request more time or fail to show up for a fingerprint appointment. Applicants and their lawyers find that sometimes the 150-day clock gets stopped without their hearing about it, perhaps even based on a government mistake — and that it’s very hard to get it started up again.
This obviously creates huge hardships for asylum applicants, many of whom end up working odd jobs or borrowing from friends in order to pay an attorney — on top of their living expenses — while their asylum case is pending. Others are lucky enough to find a nonprofit organization that provides free attorneys to asylum applicants (the U.S. government itself does not provide any such services).
What is the format of asylum interview?
The interview will generally last at least an hour, although the time may vary depending on the case. You will be asked to take an oath promising to tell the truth during the interview. Your interpreter will also take an oath promising to interpret accurately and truthfully. The Asylum Officer will verify your identity and ask you basic biographical questions. The Asylum Officer will also ask you about the reasons you are applying for asylum. The Asylum Officer will know that it may be difficult for you to talk about traumatic and painful experiences that caused you to leave your country. However, it is very important that you tell the Asylum Officer your experiences so that the Asylum Officer can determine whether you qualify for a grant of asylum. The Asylum Officer will also ask you questions to determine if any bars will prevent you from applying for or being granted asylum.
The information you share with the Asylum Officer is protected by confidentiality provisions found in 8 CFR § 208.6. In general, information related to your asylum claim cannot not be shared with third parties without your written consent or specific authorization by the Secretary of Homeland Security. There are certain exceptions to this rule. At the end of your interview you or your attorney will be afforded time to make a statement or supplement the record.
If you are not proficient in English, it is extremely important that you come to asylum interview with a competent interpreter. The interpreter must be at least eighteen (18) years of age. Also Asylum Office now have the ability to monitor the interview with their own asylum interpreter who listens to the ongoing interview and makes real time corrections if the interpretations are inaccurate.
After Asylum Interview:
At the end of the asylum interview the asylum officer will ask you to come back in two weeks to pick up the decision in your asylum case. If you asylum was granted, you can apply for work permit and after one year apply for permanent residency in the United States. Also asylees are eligible for such government benefits as welfare, food stamps, Section 8 and other government sponsor programs.
ASYLUM IN IMMIGRATION COURT
If you are asylum application is not granted following the asylum interview this should not be viewed as a denial. Instead this is a referral for your matter to be ruled on by the Immigration Judge. Upon your initial asylum application being referred to an Immigration Judge, you will be issued a Notice to Appear (NTA) which will state when and where you must appear before an immigration judge. In immigration court asylum applicant gets a second chance to prove his/her eligibility for asylum.