Mona Shah & Associates has a long history of presenting successful asylum cases all the way from the Asylum Office to the Circuit Courts. We pride ourselves on our skill, knowledge of the culture and country conditions, and most importantly, presentation.
Those who have a well-founded fear of persecution if they return to their home country may apply for asylum if their fear is based on any of the following grounds:
- Political opinion
- Religious belief
- Membership in a particular social group
A person will prevail in an asylum claim if they can demonstrate: that they suffered persecution in the past or have a well-founded fear of (future) persecution. Harm or the danger of harm as a result of a personal vendetta, criminal prosecution, civil war, anarchy, or the like does not constitute actionable persecution, though there can be exceptions.
If a person is granted asylum, after one year they may apply for permanent resident status.
The term “persecution” is not defined in the law. However, a common definition, from case law, is “the infliction of suffering or harm upon those who differ in a manner that is regarded as offensive”. Thus the harm need not rise to the level of a long-term detention and torture.
The persecution can be inflicted or threatened by a government or its agents, such as the army or police. However it need not be. It is sufficient if the harm is by persons or groups ”that the government is unable or unwilling to control”.
Most Importantly: The persecution must be on account of at least one of five specific grounds: (1) political opinion, (2) race (3) religion (4) nationality or (5) membership in a particular social group.
In addition, if someone is imputed to possess certain characteristics within these grounds whether or not they actually possess them, and suffer or fear persecution as a result, they can prevail. For instance, someone may or may not hold a particular political opinion, but because their brother is a political activist, the army seeks to harm that person. This is an example of a claim based on imputed political opinion.
A claim can be based on more than one ground; a claim with 2 bases is common.
When to File an Asylum Application:
In addition, a person must file the asylum application within one year of his or her last entry into the U.S. There are two exceptions, however. One is for “changed conditions” in the person’s home country or changes in the U.S. laws. The other is for “extraordinary circumstances”. Examples include a person being too culturally isolated to know of his or her right and obligation to apply for asylum or a person maintaining lawful status (e.g. a student visa) during the year after arrival.
Who is Ineligible for Asylum:
A person may be ineligible for asylum is he or she has persecuted others on behalf of their political opinion, race, religion, etc.; has committed a serious non-political crime before coming to the U.S.; has been convicted of certain crimes in the U.S.; is a danger to the security of the U.S.; or has been “firmly resettled” in a third country (i.e., has received an offer of permanent residence in a third country).
Persons who are ineligible for asylum for any of the above reasons, may be eligible for other forms of relief. One is called ‘withholding of removal”. The other is protection under the Convention Against Torture.
What is a Defensive or Affirmative Asylum Application?
There are two different procedural ways for a person to file for asylum. A “defensive” application is filed by a person who is in deportation or removal proceedings in the U.S. In this case, the Department of Homeland Security is actively seeking to deport or remove the person from the country. An asylum application is filed as a defense to the removal. An adversarial hearing is held before an immigration judge. Evidence and witness lists must be submitted ten days in advance. If the judge denies asylum, an appeal can be made to the Board of Immigration Appeals.
An “affirmative” application is one filed by a person who is not in removal proceedings. It involves the same application form and the same standards apply. A non-adversarial ‘interview’ is held. If the claim is denied, the case is sent to the immigration court and the case proceeds as though it is a “defensive” application.
Proving An Asylum Claim:
The burden to prove that past persecution has occurred or that a well-founded fear of future persecution exists (or both) rests with the applicant. Asylum applicants typically have little or no proof of their identity or what happened to them abroad. Attempts to obtain any evidence whatsoever to demonstrate the truthfulness of the story should be made early. Letters from family members or friends, hospital or birth records, and medical evaluations from the U.S. documenting injuries are examples of important corroboration.
In addition, news articles and human rights reports relevant to the applicant’s claim should be sought and submitted. In addition, experts in the conditions of the applicant’s country, tribal group, etc. should be sought for testimony or an affidavit. If there is a linguistic barrier, a high-quality interpreter should be used.
A Successful Applicant:
A successful asylum applicant can file papers immediately to bring in a spouse and minor children who are abroad and confer his or her asylum status on them. In addition, the successful applicant can receive an employment authorization card and, after a one-year waiting period, apply for a green card. Naturalization can occur some years beyond that.
The percentage of persons who win their asylum cases is significantly higher for those who have legal representation. Often, the real fears in asylum cases are buried below the technicalities of law and procedure, and cultural and language barriers. Working together with our client, we can assist them in telling their stories.