Asylum, Protection, Refugee Assistance

Asylum is a form of protection that allows individuals who are in the United States to remain here, provided that they meet the definition of a Refugee and are not barred from either applying for or being granted asylum, and eventually adjust their status to lawful permanent resident. Asylum is generally broken down into two areas: Affirmative or Defensive. An application for asylum is considered defensive when the applicant is in removal proceedings and asylum is identified by an attorney as a form of Relief or Defense to removal.

Under the Immigration and Nationality Act , the Attorney General may, in his discretion, grant asylum to an alien who qualifies as a refugee. Generally, this requires that the asylum applicant demonstrate an inability to return to his or her home country because of past persecution or a well-founded fear of future persecution based upon his or her race, religion, nationality, membership in a particular social group, or political opinion.

Unlike the U.S. Refugee Program, which provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified applicants who are already in the United States or are seeking entry into the United States at a port of entry. Asylum-seekers may apply for asylum in the United States regardless of their countries of origin and regardless of their current immigration status. There are no quotas on the number of individuals who may be granted asylum each year.

However, an alien may be ineligible for asylum under certain circumstances. Some conditions that may bar a person from being granted asylum are:

1. One-Year Filing Deadline

You are barred from obtaining asylum unless you prove by clear and convincing evidence that you filed an application within one year of the date of your arrival in the United States. Do not wait to file an application for asylum. However, simply filling out the form within a year does not gaurantee asylum. An application may be denied by lack of sufficient evidence in regards to the applicants eligibility for asylum.

2. Being convicted of an aggravated felony

Certain crimes that may not seem significant from the point of view of a Criminal Attorney, can have serious repercussions for a person applying for asylum. Immigration laws are written to prevent persons from obtaining asylum who have been convicted or offered a "plea" under various circumstances. If you are applying for asylum or plan to file for asylum and have a criminal matter pending, it is best to have an immigration attorney review your case to determine the best possible outcome without being in voilation of crimes the immigration service considers particularly serious.

3. Having been found to be a danger to national security

Certain crimes are catagorized under immigration law to demonstrate danger to U.S. national security. With a case reviiew, an experienced immigration attorney will be able to identify if you have any convictions that fall into this category.

Definition of Refugee from the Immigration and Nationality Act

The Immigration and Nationality Act defines "refugee" in Sec. 101(a)(42) as:

(A) any 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 return to, and 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 political opinion, or

(B) in such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term "refugee" does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.

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Even if conditions are present that may bar a person from asylum, there are similar forms of relief which can be identified by an experienced attorney. Some other forms of relief are:

Withholding of Removal 

Similar to asylum, witholding of Removal means that a person cannot be returned to their country. In order to qualify for witholding of removal, the applicant must demonstrate qualifications as a refugee. In addition to qualifying as a refugee, there must be significant demonstration that if returned the applicant would be subject to persecution.

CAT

Countries that participate in the United Nations Convention against Torture offer a very particular form of relif for those individuals, if returned to their country, would likely be in danger or subject to torture.  Applications under the U.N. Convention against Torture (CAT) are identified by an attorney and must be presented to the immigration services with substantial supporting material to substantiate the claim.

Contact Malee about you or your family member's situation to discuss if asylum may be an eligible form of relief.

DESCRIPTION OF U.S. REFUGEE PROCESSING PRIORITIES FOR FISCAL YEAR 2000

PRIORITY ONE: UNHCR or U.S. embassy identified cases: persons facing compelling security concerns in countries of first asylum; persons in need of legal protection because of the danger of refoulement; those in danger due to threats of armed attack in an area where they are located; persons who have experienced recent persecution because of political, religious, or human rights activities (prisoners of conscience); women-at-risk; victims of torture or violence; physically or mentally disabled persons; persons in urgent need of medical treatment not available in the first asylum country; and persons for whom other durable solutions are not feasible and whose status in the place of asylum does not present a satisfactory long-term solution. As with all other priorities, Priority One referrals must still establish that they meet the statutory definition of refugee .

PRIORITY TWO: Groups of Special Concern:

Africa: Specific groups (within certain nationalities) as identified by the Department of State in consultation with NGOs, UNHCR, Immigration, and other area experts. Only those members of the specifically identified groups are eligible for processing. Each group will be selected based on its individual circumstances.

Bosnia: Former detainees who were held on account of ethnicity or political/religious opinion; persons of any ethnic background in mixed marriages; victims of torture or systematic and significant acts of violence against members of targeted ethnic groups by governmental authorities or quasi-governmental authorities in area under their control; surviving spouses of civilians who would have been eligible under these criteria if they had not died in detention or been killed as a result of torture or violence.

Burma: Certain members of ethnic minorities who have actively and persistently worked for political autonomy; certain political activists engaged in the pro-democracy movement.

Cuba: In-country, emphasis given to former political prisoners, members of persecuted religious minorities, human rights activists, forced-labor conscripts, persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs or activities, dissidents, and other refugees of compelling concern to the United States.

Iran: members of Iranian religious minorities.

Former Soviet Union: In-country Jews, Evangelical Christians, and certain members of the Ukrainian Catholic or Orthodox churches. Preference among these groups is accorded to those with close family in the United States.

Vietnam: In-country, former reeducation camp detainees who spent more than three years in detention camps subsequent to April 1975 because of pre-1975 association with the U.S. Government or the former South Vietnamese government; certain former U.S. Government employees and other specified individuals or groups of concern; persons who returned from first-asylum camps in Southeast Asia on or after October 1, 1995, who qualify for consideration under the Resettlement Opportunity for Vietnamese Returnees (ROVR) criteria. In FY 2000, on a case-by-case basis, other individuals who have experienced recent persecution because of post-1975 political, religious, or human rights activities. Completion of the processing of any residual ODP cases registered and determined eligible for consideration prior to the beginning of FY 2000.

PRIORITY THREE: Spouses, unmarried sons and daughters, and parents of persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees; the over 21-year-old unmarried sons and daughters of U.S. citizens; and parents of U.S. citizens under 21 years of age. (Spouses and unmarried sons and daughters under 21 of U.S. citizens and the parents of U.S. citizens who are 21 and older are required by regulation to be admitted as immigrants rather than as refugees unless it is in the public interest.)

PRIORITY FOUR: Grandparents, grandchildren, married sons and daughters, and siblings of U.S. citizens and persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees. (Currently open only to Bosnians and without regard to ethnicity.)

 

 

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