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What You Need To Know About Asylum And Refugee Law

With an influx of people in the United States, it is imperative that arriving immigrants who left their home country because of past persecution or a fear of future persecution know what form of protection they may see in the USA. 

The law states that anyone who has left their home country because of persecution and is afraid to return may be eligible for asylum or refugee status within the US. Though the term is used interchangeably, there is really a difference between the two. Asylum is what an individual within the four corners of the USA applies for. On the other hand, refugee status is available to people outside the borders of the USA. Now, once you are granted asylum or refugee status, you are legally allowed to remain in the USA indefinitely unless the status is revoked. Also, you are authorized to work while in the US. For asylum applicants, you may be eligible to apply for employment authorization if your application was received by USCIS and it has been pending for 150 days. Those in removal proceeding, if you file your application with the Immigration Judge or Court and it is pending for 180 days, you may apply for employment authorization.

The grant of asylum is completely discretionary. The law states that one may be granted asylum if they are a refuge. The law defines a refuge as “any person who is outside any country of such person’s nationality … 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 well-founded fear of persecution on account of race, nationality religion, membership in a particular social group, political opinion. See Section 208(b) (10(A) of Immigration and Nationality Act; INA § 101(a) (42)(A). An asylum “applicant may qualify as a refuge either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. 8 C.F.R. § 208.13(b).

One issue many of those seeking asylum or refugee status must face is the fact that not everyone who wants to apply for it actually qualifies. The requirements, in fact, are quite strict and those trying to apply for such status with legal representation inside the US from a qualified attorney who understands asylum and refugee law may find themselves, unfortunately, unable to qualify.

To qualify, you must specifically demonstrate:

 (1) that you cannot or do not want to return to your home country because of the persecution you’ve experienced there or the reasonable suspicion that you will endure it upon your return; and

 (2) That the persecution was/is based on the 5 numerated categories below:

  •   Race
  •   Nationality
  •   Membership in a particular Social Group
  •   Religion
  •   Political Beliefs

What is Persecution?

While there is no statutory definition of persecution, the hallmark of persecution involves a threat to life or freedom. See 8 U.S.C. § 1231(b) (3) (A). The Seventh Circuit has described persecution as “punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.” Begzatowski v. I.N.S., 278 F.3d 665, 669 (7th Cir. 2002) (internal citations omitted). Persecution includes “detention, arrest, interrogation, prosecution, imprisonment, illegal searches, and confiscation of property, surveillance, beatings, or torture.”  Mitev v. I.N.S., 67 F.3d 1325, 1330 (7th Cir. 1995). Detention, in particular, qualifies as persecution if it involves “more than simple incarceration.” Zalega v. I.N.S., 916 F.2d 1257, 1260 (7th Cir. 1990) (citations omitted). Women who are subjected to traditional practices such as female genital mutilation, are persecuted for the purpose of asylum law. Forced sterilization in China is persecution. Domestic abuse by spouse in Africa, Central and South America is persecution. If you have been arrested, prosecuted or detained because of your sexual preference, that may be considered persecution too.

The United States immigration law is very complex. And the law surrounding asylum is a quagmire. Therefore, it is imperative that you get an experienced immigration attorney to help you in this matter.

For instance, obtaining asylum because of a membership in a particular social group has proven to be the most controversial category and the one that those seeking asylum and refugee status are most in need of legal guidance and representation.  Social group could be one of the same genders, sexual preference, one the government sees as a threat, or that share a common characteristic they cannot and should not be expected to change. For example, ethnic groups, tribes, social classes, family members of dissidents, homosexuals, occupational forces, members of former gang, political, military, or police forces, and women.

I have successfully represented clients in both immigration court and in front of asylum officers for cases involving female genital mutilation, forced and early marriage, imputed and actual political opinion, sexual orientation, etc. If you are thinking about asylum in the United States, a family member is detained and facing deportation, or a loved one is in removal proceeding, please call me to discuss your case.

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