I did not make the above video, but it explains the difficulties of applying for asylum, and you should watch it before reading the rest of the article.
When a person says asylum, they are really referring to three different things under the law.
- Asylum – 8 U.S.C. § 1158
- Withholding of Removal – 8 C.F.R. § 1208.16
- Deferral of removal under the Convention Against Torture (CAT) -8 C.F.R. § 1208.17
I am going to go over what disqualifies you for each of the above and what your legal burden is to qualify for each.
ASYLUM (also called refugee status)
You must apply for asylum within one year of entry into the United States unless you can show a change in country conditions. Conviction of certain crimes will bar you from receiving asylum.
LEGAL BURDEN FOR ASYLUM
To demonstrate a well-founded fear of future persecution, an applicant for asylum must prove (1) a fear of persecution on account of protected characteristics, such as race, religion, nationality, membership in a particular social group, or political opinion; (2) a reasonable possibility of suffering such persecution if he were to return to that country; and (3) that he is unable or unwilling to return to, or avail himself of the protection of, that country because of such fear. 8 C.F.R. § 208.13(b)(2)(i). Not all treatment that is unfair, unjust, or even unlawful or unconstitutional will qualify as persecution, only threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom. An applicant must have a subjective fear of future persecution and that fear must be objectively well-founded. The feared acts of persecution must be committed by the government or forces the government is either unable or unwilling to control.
WITHHOLDING OF REMOVAL
Persons convicted of “particularly serious crimes” can not be granted withholding of removal.
LEGAL BURDEN FOR WITHHOLDING OF REMOVAL
An alien is entitled to withholding of removal under the Immigration and Nationality Act if the Attorney General decides that the alien’s life or freedom would be threatened in the country the alien is removed too because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.S. § 1231(b)(3)(A). An alien bears the burden of establishing a clear probability that his or her life or freedom would be threatened, meaning that it must be more likely than not that the alien would be subject to persecution. To constitute persecution, the actor causing the harm must be the government or forces that the government is unwilling or unable to control.
DEFERRAL OF REMOVAL UNDER THE CONVENTION AGAINST TORTURE (CAT)
All persons are eligible to receive deferral of removal under the CAT.
To prevail on a claim under the Convention Against Torture, an alien is required to establish that it is more likely than not that he would be tortured if removed to his native country. 8 C.F.R. 1208.16(c)(2). To establish torture under the CAT, he is required to show that his severe pain or suffering would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. 1208.18(a)(1).
To establish that a foreign government would acquiesce in the torturous acts of an applicant’s political opponents and gang members, an applicant for relief under the Convention Against Torture must demonstrate that, prior to the activity constituting torture, a public official was aware of it and thereafter breached the legal responsibility to intervene and prevent it. The applicant can meet this standard even if the government does not have actual knowledge of the activity if he produces sufficient evidence that the government is willfully blind to such activities.
To establish entitlement to relief under the Convention Against Torture an applicant is not required to show that he suffered mistreatment rising to the level of persecution on account of any protected status.
In order to apply for Asylum, Withholding of Removal or Deferral of removal under the Convention Against Torture (CAT), you need to fill out an I-589 form.
An I-589 form is here.
The I-589 instructions are here.
Please note that the I-589 form must be typed in English and you can type your answers. Do not print the form and write your answers in by hand. Type everything into the form and print the form.
Once your form is complete you need to file your I-589 form at the appropriate office for the state that you live in. I have placed the list here for easy reference.
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At least 48 hours after you file your I-589 application you will receive a Credible Fear Screening or a Credible Fear Interview by the United States Citizen and Immigration Services (USCIS). A link to the form that the USCIS officer will use is here, but the below picture are probably the most important questions that an asylum seeker will be asked:
You need to know and understand the answers to these three questions before you have this interview. The questions are exactly:
- Have you or any member of your family ever been mistreated or threatened by anyone in any country to which you may be returned?
- Do you have any reason to fear harm from anyone in any country to which you may be returned?
- If YES to a and/or b was it because of any of the following reasons?
Race – Religion – Nationality – Membership in a particular social group – Political Opinion
If these three questions are not answered properly you will dramatically diminish your chances of winning your asylum claim.
I can not stress how important this is I am even going to put it in bold! To qualify for asylum or withholding the persecution has to be because of your Race – Religion – Nationality – Membership in a particular social group – Political Opinion.
When you are asked why you fear to return to your home country and you claim under oath that it is NOT because of your Race – Religion – Nationality – Membership in a particular social group – Political Opinion, you will not get granted asylum or withholding and will be stuck trying to qualify for CAT, which is much more difficult!
Also, keep in mind that the Credible Fear Interview is given under oath, So you if you change your story later you will not be found credible by the immigration judge that is handling your case, but also could potentially face perjury charges if your testimony is found to be false.
So you must keep in mind that you must know the exact dates and details of your case to be found credible. For example, if your Credible Fear Interview you claim that you were arrested and assaulted by the police in your native country for attending a political rally in 2015, and the government checks your passport and finds that you were not in your country in 2015 that will look very bad for your credibility, even if you just made a mistake and the assault actually happened in 2014, while you were still in your home country. Make sure that you refresh your memory at all the facts of your case before you have your Credible Fear Interview.
You must, if at all possible, support your application with as much evidence as possible. For example witness affidavits, medical records, police reports, media reports, and reports from universities, refugee organizations, and the United Nations.
The next thing is that the Immigration Judge must also determine that your home countries government will either participate in your torture or persecution, or access (this means that they will turn a blind eye) in the torture or persecution. In most cases to make a successful claim of government acquiescence your case must be supported by an immigration expert witness. XXXXXXX EXPERT WITNESS PAGE XXXXX
Also, keep in mind that sometimes even the United States government does not follow its own rules. This means that you can sometimes file a valid asylum claim with the Immigration Court and get denied, which forces you to appeal to the Board of Immigration Appeals and then to the Circuit Court of Appeals for whatever Circuit that you are in.
Do not ever let anyone ever tell you that receiving asylum benefits in the United States is easy, but if you properly present your case you can win your case and be granted relief under the Immigration and Nationalities Act.
Asylum claims present very complex legal issues and should not be attempted without some sort of help unless you are deeply familiar with United States immigration law. You can file your application by yourself, prose, that is without the aid of an attorney, follow the above tips and make sure that you are fully prepared! As always immigration law is very complex and if you have any questions click the contact link at the top of the page.
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