Asylum is a remedy available to individuals who have been persecuted or who face persecution in their countries because of their race, religion, nationality, political opinion, or membership in a particular social group. Applicants must be able to demonstrate that they were persecuted in the past or that there is a well-founded fear that they will face persecution if they were remain in or be sent back to their countries. The persecutor may be the government or a group or individual the government is unable or unwilling to control. Asylum seekers also must present evidence that their race, religion, nationality, political opinion, or membership in a particular social group was at least one central reason motivating the persecutor.
An asylum seeker must prove that:
- The harm he or she suffered or fears is serious enough to constitute “persecution”
- He or she suffered past persecution or has a “well-founded fear” of future persecution
- He or she was persecuted by the government or by a group or individual that the government is unable or unwilling to control
- His or her persecutor was motivated to persecute him or her, at least in part, because of his or her race, religion, nationality, political opinion, or membership in a particular social group, or because of what the persecutor perceived to be his or her race, religion, nationality, political opinion, or membership in a particular social group
- He or she was not firmly resettled in a third country prior to arriving in the United States
- He or she filed the asylum application within one year after arrival in the United States or, if he or she has been in the United States for more than one year before applying, within a reasonable time after extraordinary or changed circumstances that affected his or her ability or eligibility to apply for asylum (these include having been in legal status); and
He or she does not fall within any of the other exceptions to asylum, barring persons who:
- engaged in the persecution of others
- committed a particularly serious crime that would make them a danger to the community
- were convicted of an aggravated felony (waiver is available)
- committed a serious nonpolitical crime outside the United States
- a danger to U.S. security
In addition, asylum is granted in the exercise of discretion, meaning that the adjudicator may deny the application, even if all statutory requirements are met, if there are significant discretionary factors justifying denial.
In 1996, with passage of IIRAIRA, Congress imposed new requirements on asylum seekers in the United States. They now must apply for asylum within a year of their arrival in the United States. There is an exception to this one-year requirement in the event of extraordinary or changed circumstances that affect the applicant’s eligibility for asylum or ability to file the application. In those circumstances, the applicant must apply within a reasonable time after the extraordinary or changed circumstances. A second major change was that individuals who arrive at a U.S. port of entry without valid travel documents are subjected to “expedited removal.” Although asylum seekers are entitled to a “credible fear” interview by an immigration officer, reviewable by an Immigration Judge, they may be returned home to their countries without having full removal proceedings. If the application for asylum is filed while the applicant is inside the U.S. and is subsequently denied, the applicant shall be placed in removal proceedings and will be faced with deportation from the U.S. In the alternative, a person who has been placed in removal proceedings may file a “defensive” asylum application while immigration court.
An approval of an asylum application carries significant benefits. In addition to being allowed to remain in the United States, the asylee is authorized to work, and may obtain derivative asylum status for his or her spouse and children. After one year as an asylee, the asylee may apply to adjust status to that of permanent resident. The asylee is also eligible for certain public benefits.
The attorneys at the Law Office of Yuri Tsyganov, PL have a tremendous amount of experience in the asylum application process as well as asylum proceedings in immigration court. We know how the system works and may be able to come up with a strategy that will keep you or your loved ones in the U.S. If you are detained, we will visit you or your loved ones at the immigration detention facility. Do not wait before it’s too late. Time is always of the essence when it comes to deportation. Call today to schedule your Free Consultation.