Send Email: CLICK HERE
Copyright Boyd F. Campbell, L.L.C., All Rights Reserved
Qualifying for political asylum in the United States
By BOYD F.
Attorney at Law and Civil Law Notary
asylum is granted by the U.S. government to people who can prove that they
are afraid to return to their home country because they have a "well-founded
fear of persecution." People may also be granted political asylum
if they left their home country because they were persecuted in the past.
If you win political asylum, you can apply for your "green card" (permanent
residence). To win asylum because you are afraid of returning to your home
country, you must appear at an initial hearing before a U.S. Citizenship
and Immigration Services (USCIS) asylum officer, usually at a USCIS district
office. If you application for asylum is denied, you may appeal to
an immigration judge, and will have another opportunity to prove that your
fear is "well-founded."
You must convince the asylum officer or immigration judge that you truly believe you are in danger, that you have good reasons for this belief, and that someone else in your position would also be afraid. You must generally present independent, verifiable documentary evidence that shows you fear persecution in your home country or that you have been persecuted in the past. Persecution can mean that you have been, or may be, hurt, kidnapped, detained, jailed, tortured, threatened, killed, or beaten, or that your freedom was or will be taken away in any other way.
The people who persecuted you or whom you're afraid will persecute you if you return to your home country can be the government (army, police, soldiers, elected officials, death squads, or others), the guerrillas, another opposition group, the civil patrol, or any other group that the government cannot or will not control. The people who persecuted you or whom you think will persecute you if you return to your home country must be persecuting you based on one of the following five reasons:
1. The most common reason for being persecuted is because of your political opinion. It doesn't matter whether you support or oppose the government. People who have been persecuted because of their political opinions and have won their asylum cases have included: people who demonstrate as students, are active in labor unions, or are members of political parties or the government. Sometimes, even if you don't have a political opinion, the persecutor may think you have a certain political opinion. He may persecute you because he thinks you have a political opinion due to things you do, groups you belong to, or your family's background.
2. Another common reason for being persecuted is your religion, no matter what religion it is. If you're not allowed to practice your religion or you are persecuted because of your religious beliefs, you may be able to qualify for asylum. Many times people who are religious workers, catechists, or members of Christian Base communities qualify for asylum.
3. Often people are persecuted because they belong to a particular social group. This means people who share certain characteristics such as: age, place where they live, family, ethnic group, race, nationality, gender or community.
4. Sometimes people are persecuted because of their race. This means that if you have been or may be persecuted because of your skin color, origin or background you may qualify for asylum.
5. Some people are persecuted because of their nationality. Nationality is similar to race. It can mean your country of citizenship, country of origin or your ethnic group.
6. Recently, the immigration and federal courts have also created a new ground for persecution based on sex and the treatment of women in foreign countries, and this ground may include the practice of female genital mutilation in the asylum applicant's home country.
If the persons who are persecuting you are doing so for personal reasons only, you will not win your case. Yet, if you have a well-founded belief that the persons who are persecuting you are doing so for a number of reasons, one of which is personal, then you may be able to obtain political asylum in the United States. For example, if a soldier who is off-duty threatened to kill you because he thought you had stolen money from him, that would not qualify as a well-founded fear of persecution for purposes of political asylum because the threat relates to something personal, strictly between the two of you. But if this same soldier then told his commander that you were a guerrilla or an anti-government activist, then you could argue the danger would no longer be just personal; it would also be political.
The closer the persecution came to you, the stronger your case will be. For example, you would have a better case if you yourself were threatened or captured than if a fellow-student or someone else in your town or family were threatened or captured. However, if you can prove that what happened to the other person shows that you are also in danger, you still may have a strong case. Your testimony, if the immigration judge (or INS asylum officer) believes it, can be enough to prove your case. You do not need documents. Even though you do not need them, documents and independently verifiable information are always helpful to show that at least parts of your story are true. For example, it can be helpful to show student or union identification cards, letters from a church or other religious group with whom you've worked, newspaper articles about you, your family or town, as well as general articles showing the problems in your home country, such as reports from the U.S. Department of State or Amnesty International.
Anyone who applies for political asylum and has persecuted someone else because of that person's political opinion, her membership in a social group, her religion, her race or her nationality may not be granted political asylum, no matter how strong the case may be. For example, if a member of the army or a guerrilla group participated in the kidnapping, torture or murder of someone else whom he suspected of opposing his group politically, this could mean he was persecuting another because of political beliefs and he will probably lose his political asylum case. Yet, if you were a guerrilla or soldier and hurt or killed another guerrilla or soldier while you were fighting in a war, then you probably would not be considered to have persecuted another and you may still be able to qualify for asylum.
Besides persecuting others, you can also be denied political asylum if you were convicted of certain bad crimes or for other reasons. You should always check with a lawyer or law office to see if you may be able to qualify for asylum.
To prove your political asylum case, you will likely have to have to have a hearing in front of an immigration judge. The purpose of the hearing is to tell the immigration judge your story of why you fear returning to your home country. The immigration judge will decide if you qualify for political asylum. He will decide in your favor if he feels you fear being persecuted in your home country and if he feels that your fear is real (this means that someone else in your position could have the same fear and you are not just making it up). Your immigration lawyer, an interpreter (if you need one), the lawyer representing USCIS, and the immigration judge will all be at the hearing. Each person has a different role at the hearing.
Your immigration lawyer
Your immigration lawyer is on your side. It is his job is to help you explain to the judge why you fear returning to your home country. You and he will already have prepared an application and a declaration for the immigration judge to read, but the immigration judge wants to hear your story live and in person. The way you have to tell the immigration judge why you are afraid to return to your home country in the court is different from the way most stories are told. In the court, the way stories are told is through what is called the direct exam. The direct exam is when the your immigration lawyer asks you questions and you'll answer them for the immigration judge. Your answers will include everything that happened causing you to leave your home country and why you can't return. Most of the information your lawyer will be asking you will be based on the information provided in your Form I-589 application for asylum and what you have told your immigration lawyer in previous interviews.
Immigration and Naturalization Service (INS) lawyer
The USCIS lawyer (called the "district counsel" or the "Service attorney") will do what is called the "cross-examination". The cross-examination is when the USCIS lawyer asks you questions right after your lawyer finishes asking you questions, and you have to answer these questions, too. The USCIS lawyer will try to show you don't qualify for asylum. He will do this by trying to confuse you, to show you are lying or being inconsistent, or that you really came to the United States to make some money, escape military service, or for some other reason, instead of because you feared being persecuted. You and your lawyer will practice the cross-examination so you are used to it before the hearing. After the USCIS lawyer asks his questions, your lawyer will have another chance to ask more questions and then the USCIS lawyer gets another chance, too. So each side (yours and USCIS) gets two chances to ask questions.
The interpreter, if needed, will interpret the questions that your lawyer, the USCIS lawyer and the immigration judge ask you into your language and will interpret your answers into English. Some interpreters are better than others. You should learn how to best use a interpreter. It is best to practice with an interpreter before the hearing. If you speak in short, very clear sentences, it will help because it is hard for the interpreter to accurately interpret more than a couple of sentences at a time.
The immigration judge
judge will decide the case if a USCIS asylum officer has denied your application
for political asylum. He will want to satisfy himself that you are
telling the truth. Immigration judges feel that they can determine
this. Thus, it is important for you to look him in the eyes once
in a while, act natural, believable, and confident, and not to look down
at the floor. The immigration judge will also be looking for inconsistencies
in your story based on what you say during the hearing and also what the
application and declaration include. Sometimes the immigration judge
may interrupt the questioning by the others, and ask his own questions.
He may also ask questions at the end of the hearing. If the immigration
judge grants you asylum, one year later you can apply for your "green card."
If your asylum case is denied, you will not necessarily be deported immediately. The immigration judge may give you some time to leave or you can appeal the case, which often takes one to four years. During the appeal process, you will be allowed to remain in the United States with USCIS employment authorization (a "work permit"). But you cannot leave the United States. If you do, you will automatically lose your case.
You must apply within one year of arriving in the United States
Current federal law requires an asylum applicant in the United States to apply for asylum no less than one year after entering the United States. However, USCIS policy with regard to waivers of the one-year requirement is liberal, and there are many reasons for not applying within this one-year period.
What about the children?
the resolution of the Elian Gonzalez case in June, 2000, there has been
much discussion of the word "capacity" as it is applied to minor children
who may have a colorable claim to political asylum in the United States.
In an excellent article published in the ABA Journal for August,
2000, writer Siobhan Morrissey researched the issue.
" 'More than a dozen attorneys represented Elian's Miami family,' Bernard Perlmutter, director of the University of Miami's Children and Youth Clinic, was quoted as saying, 'but most refugee minors are not so lucky.' Last year, 5,000 unaccompanied children sought asylum in the United States, he said, explaining that there were 'many instances where they had no access to interpreters or [legal] counsel.
"Some of these children fled the horrors of their homelands: bonded labor, femal genital mutilation, child prostitution and conscription into the military as child soldiers. Last year, 1,200 children voluntarily agreed to deportation from the United States, largely because many of them did not understand their legal options, Perlmutter says.
" 'They may well be children who have bona fide claims to asylum,' he says.
"The United Nations High Commission on Refugees estimates children compose more than half the world's refugee population -- roughly 20 million minors. Those who make it to the United States often don't comprehend the legal process and have difficulty being heard, says Wendy Young, director of government relations with the Women's Commission for Refugee Women and Children, a New York City-based nonprofit organization.
" 'An asylum seeker who is represented by an attorney is three times as likely to win asylum as one without,' Young says. 'When you add to that mix a child's capacity, it is virtually impossible to win asylum.'
"Not all children merit asylum, Young concedes. However, all minors should be appointed an attorney to shepherd their cases, as is already done in Britain, she adds."
are in a separate category from political asylum applicants. They
are admitted to the United States under executive orders that mirror U.S.
participation with the United Nations High Commissioner for Refugees worldwide.
Refugees are admitted for permanent residence, or temporarily until situations
in their home countries are resolved and they are able to return home.
Many refugees worry that taking advantage of federal public benefits, such as food stamps, and Aid to Families With Dependent Children, will bar them from receiving immigration benefits or U.S. citizenship. Fact sheets on the availability of federal public benefits for refugees are available on our web site by clicking on the following link: Benefits
If you think you may be eligible for political asylum, or you know someone who may be eligible, get good legal guidance. If you cannot afford legal help, contact the Immigration Law Center, at (334) 832-9090. Foreign-language Interpreters are available from 8:30 a.m. to 5 p.m. Central Time, Monday through Friday. They will provide you with information about political asylum and how you can file with USCIS for political asylum on your own, without an attorney. The Immigration Law Center uses the language translation and interpretation services of the Linguist Databank. If you can afford to hire a lawyer to help you with a political asylum application, and you need the help of an interpreter fluent in a language other than English, you are invited to call our law offices, after hours, at (334) 832-9090. Leave your message in your native language and ask us to find an interpreter for you. If you leave your name and telephone number, we will get in touch with you to arrange an interview.
If you cannot afford a lawyer, request free or needs-based legal aid through the International Assistance Project of Alabama (IAPA), which provides legal services in meritorious cases. You can read more about IAPA by clicking on the following link: CLICK HERE. If you live outside the southeastern United States and would like to hire a lawyer closer to you, call the American Immigration Lawyers Association (AILA) at (202) 216-2400 and ask for the Lawyer Referral Service. Winning your political asylum case will not be easy. A high percentage of cases are routinely denied. You are three times as likely to lose your case without the help of an attorney who is knowledgeable about U.S. immigration and nationality law and political asylum. If you dedicate yourself to the task and work hard, it may take years to achieve your goal, but you can be successful.
WARNING: Your friends, relatives, and fellow employees are good sources of bad advice concerning immigration and nationality law. It does not cost much to present you situation to a qualified immigration lawyer to find out what you should do or get a legal opinion on whether you are eligible for political asylum. Such advice and guidance is usually worth much more than you pay for it. You can get professional help from a member of the American Immigration Lawyers Association (AILA) by calling (202) 216-2400 in Washington, D.C., and asking for the Lawyer Referral Service.
Boyd F. Campbell is a member of the American Bar Association (ABA) and the American Immigration Lawyers Association (AILA). He is former Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section. He is also a former Co-Chair of the Immigration Law Committee of the ABA's Section of Labor and Employment Law and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He also serves as Chair of the International Law Section of the Alabama State Bar. Mr. Campbell is Alabama's first practicing civil law notary, having been appointed to this official position by Alabama's Secretary of State in August, 2001. He is also Chairman of the Board and Legal Director of the International Assistance Project of Alabama, a nonprofit organization whose mission is to encourage economic development and family orientation among Alabama's new international residents and long-term visitors. Please consider volunteering with IAPA, and read more about IAPA by visiting its home page.
Questions or comment about this
article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 U.S.A.
Telephone: (334) 832-9090
Send Email: CLICK HERE
NAVIGATION: BACK to the Immigration Law Center Home Page: CLICK HERE