ASYLUM, WITHHOLDING OR REMOVAL, REFUGEE STATUS AND TPS
A. § 29.01: Introduction
1. The Immigration and Nationality Act (INA) provides two forms of protection for aliens who come to the United States fleeing persecution in their home countries
a. Asylum; and
b. Withholding of removal
2. Aliens who come from certain countries designated by the Attorney General may be eligible for another status, called temporary protected status
3. In addition, aliens outside of the United States may apply for refugee status if they meet the statutory and regulatory requirements
B. § 29.02: Establishing eligibility for political asylum
1. Eligibility and definition of “refugee”
a. Definition of refugee
i. An alien is eligible for a grant of asylum if he or she qualifies as a refugee as defined in the Act:
ii. 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 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
iii. The application for asylum involves two steps:
· First, a showing that a person has a well-founded fear of persecution
· Second, an exercise of discretion by the Attorney General in favor of granting asylum
iv. In withholding of removal, the Attorney General has no
v. The withholding or removal requires a higher burden of proof
b. Well-founded fear
i. The element of “well-founded fear” involves both subjective and objective aspects
· The subjective element means that the applicant’s fear must be genuine
· The objective element has been interpreted to mean that a reasonable person would fear persecution
ii. The requirements necessary to satisfy the objective standard is as follows:
· The applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
· The persecutor is already aware, or could be aware, that the applicant possesses this belief or characteristic;
· The persecutor has the capability of punishing the applicant;
· The persecutor has the inclination to punish the applicant
c. Persecution
i. Defining persecution
· Neither the INA nor the implementing regulations define “persecution”
· The UNHCR handbook states that persecution would always include “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group, as well as serious violations of human rights”
· The INS recognizes that the following types of treatment meet that test: killing other than as lawful punishment upon conviction in accordance with due process; genocide; slavery; torture and other, cruel, inhuman or degrading treatment; and prolonged detention without due process
ii. Discrimination as distinguished from persecution
· Discrimination or merely unfair treatment is not normally persecution, unless it can be shown that it results in extremely serious restrictions on important rights, or that a number of discriminatory measures cumulatively amount to persecution
iii. Economic hardship
· Similarly, a flight from economic hardship or disadvantage alone does not qualify one as a refugee
iv. Relationship of prosecution and persecution
· Prosecution is not the same as persecution
· Prosecution for a crime is not persecution
· However, if the prosecution arises out of government security concerns in a country where there is no opportunity to implement change in the government through peaceful processes, then such prosecution may amount to persecution
v. Role of intent of persecutors
· Even though the persecutor’s act lacked punitive or malevolent intent, the treatment may nevertheless amount to persecution
vi. Identity of persecutors
· In most situations, the government or government agents or officials in the home country are the persecutors
· In many cases, however, the persecutor is a non-government group that the government is unwilling or unable to control
· It may be possible to qualify for asylum even if the non-governmental persecutor is a single individual, if the government is unwilling or unable to control that person’s conduct
d. Pattern or practice of persecution against group
i. Membership alone in a persecuted group may be enough to establish eligibility for asylum
ii. Applicants need not show that they would be singled out individually for persecution if they can establish that there is a patter or practice of persecution against that group
2. Grounds for persecution
a. Race
i. The category of race includes all ethnic groups commonly referred to as races
ii. Being a member of a particular race that suffers from discrimination or persecution will not, by itself, usually suffice to establish eligibility for asylum
b. Religion
i. Persecution on account of religion may be on the basis of observance of religious practices, or on the basis of religious heritage, in which case it may overlap with social group persecution
ii. Mere membership in a religious group is not usually enough to form the basis of an asylum claim, although there may be special circumstances where it suffices
c. Nationality
i. Nationality may include both citizenship and common ethnic and linguistic characteristics
d. Membership in a particular social group
i. A particular social group is made up of people of similar background, habits or social status
ii. Whatever the common characteristic that defines the group, it must e one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences
iii. The Ninth Circuit has considered the issue of eligibility for asylum on the basis of membership in a particular social group as a four-part analysis;
· Whether the class of people identified is cognizable as a particular social group
· Whether the applicant has established that he or she is a member of the group
· Whether the social group has in fact been targeted for persecution on account of the characteristics of the group members
· Whether such special circumstances are present to warrant regarding mere membership in that social group as constituting per se eligibility for asylum
iv. A pattern or practice of persecution against a group can satisfy the special circumstances element of the Sanchez-Trujillo test
v. The definition of a social group may include associations that are immutable as well as those that are voluntary
vi. Groups that have been recognized as particular social groups subject to persecution include: families; tribes; government employees and former government employees; professionals, business people and intellectuals; students; union members; landowners; and homosexuals
vii. Groups that have not been found to meet the necessary definition include young working class males who have not served in the military; family members of military deserters; cheese-makers who supplied guerrillas with food; and drug dealers
e. Political opinion
i. Political opinion as the basis for eligibility for asylum should be interpreted broadly, to include opinions about a government, its officials, or its policies
ii. An applicant may also be eligible for asylum if he or she fears persecution based on a political opinion imputed to him or her as distinguished from an opinion that he or she actually holds
3. Past persecution
a. An applicant is a refugee pursuant to the statutory definition and therefore eligible for asylum if he has already suffered persecution on account of one of the enumerated grounds, without having to show that there is a well-founded fear of persecution in the future
b. Even if it has been established that there is not a well-founded fear of persecution, an applicant can still be granted asylum if he demonstrates compelling reasons for being unwilling to return arising out of the severity of the past persecution
C. § 29.03: Mandatory denials of asylum
1. For asylum applications filed after April 1, 1997, the procedural bars to applications are as follows;
a. The applicant must demonstrate, by clear and convincing evidence, that the application for asylum has been filed within one year after the date of his arrival in the U.S.
b. An application will be rejected if the application has had a previous application for asylum denied by an immigration judge or the Board of Immigration Appeals
c. If the Attorney General determines that pursuant to a bilateral or multilateral agreement, there is a country to which the applicant could be sent
2. For asylum applications filed on or after April 1. 1997, an applicant will not be granted asylum if the following conditions apply;
a. If he ordered, incited, assisted, or otherwise participated in the persecution of any person based on the enumerated categories
b. If he, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States
c. If there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States before arriving in the U.S.
d. If there are reasonable grounds for regarding the alien as a danger to the security of the United States
e. If the applicant is inadmissible or removable on certain grounds relating to terrorist activity, or
f. If the applicant was firmly resettled in another country before coming to the U.S.
3. The Attorney General has the discretion to establish other limitations and conditions on eligibility
D. § 29.04: Discretion
1. If an applicant establishes that he is a refugee, and that none of the mandatory bars to asylum apply, then he is eligible for asylum
2. Once the applicant has made that demonstration of eligibility, however, and is not subject to any mandatory bars, the officer may not ordinarily deny asylum as a matter of discretion
3. The most important factor in favor of granting asylum is severe past persecution, and an applicant’s belief that returning to the place of persecution would be unduly frightening and painful
4. Adverse factors include circumvention of orderly refugee procedures, use of fraudulent documents, and criminal conduct
E. § 29.05: Consequences of receiving asylum
1. Benefits
a. An asylee is eligible to have his or her spouse and children follow to join the asylee in the United States, and be granted asylum in their own right
b. Asylees are also immediately eligible to apply for employment authorization
c. After one year in asylee status, asylees may also apply for adjustment to permanent resident status
2.
countries that are experiencing ongoing armed conflict, severe natural disaster or other extraordinary temporary circumstances making it unsafe for them to return safely
2. The attorney general may designate a foreign state for purposes of temporary protected status only if he finds that;
a. There is an ongoing armed conflict within the aliens country
b. There has been an earthquake, flood, drought, epidemic, or other disaster
c. There are extraordinary and temporary conditions in the state that prevent aliens from retuning in safety
3. The attorney general must specify a period for an initial designation of a country of no less than six months and no longer than eighteen months
4. To be eligible for a grant of TPS, an alien from a designated country must establish continuously physically presence in the United States
5. Aliens who are ineligible for asylum or have been convicted of a felony on two or more misdemeanors are ineligible for TPS
6. The application for TPS must be filed with the INS district director during the registration period on form I-821, together with the proper fee
RELATIVES
A. § 11.01: In general
1. The Immigration and Nationality Act (INA) excludes from numerical restrictions the immediate relatives of U.S. citizens
2. The purpose of this exclusion is to promote the unification of U.S. families
3. Under the INA, immediate relatives consist of the spouses and the unmarried minor children of U.S. citizens, and the parents of U.S. citizens who are at least 21 years old
a. However, some family members of an immediate relatives may themselves be entitled to independent immediate relative status, like stepchildren
4. Family-sponsored preference immigrants consist of:
a. Unmarried sons and daughters of U.S. citizens (FS-1)
b. Spouses and unmarried children of permanent resident aliens (FS-2)
c. Married sons and daughters of U.S. citizens (FS-3)
d. Brothers and sisters of U.S. adult citizens (FS-4)
5. The family-sponsored first-preference category is backlogged a year or so, the second and third preferences are years behind, and the fourth is hopelessly backlogged
6. The petitioning relative is called the petitioner; the alien for whom immigration status is sought is called the beneficiary
B. § 11.02: Spouse of U.S. citizen
1. In general
a. The statute grants immediate relative status to both alien husband and wives of U.S. citizens
b. Immediate relative status can survive the death of the U.S. citizen petitioner for the benefit of certain widows and widowers of U.S. citizens
c. The statue also provides a nonimmigrant category of alien fiancé who can come to the U.S. to marry a U.S. citizen and then adjust to permanent resident
2. Prerequisite of valid and subsisting marriage
a. Validity of marriage
i. To qualify for immigration benefits as the spouse of a U.S. citizen or lawful permanent resident, the parties must have a valid and subsisting marriage, not a sham marriage arranged solely for an immigration advantage
ii. The validity of the marriage is ordinarily judged by the law of the place where it is entered into
iii. Petitioners have the burden of establishing any foreign law on which they rely
iv. For a marriage to be valid, any prior divorce must be valid and final
v. The distinction between a void and voidable marriages is that a void marriage is invalid from its inception, while a voidable marriage is treated as valid until annulled or otherwise terminated
vi. Where permanent residence is granted on the basis of a marriage that is less than two years old, the termination of the marriage within two years of the grant gives rise to a presumption that the marriage was a sham
b. Continuing marriage
i. Not only must the marriage be valid, it must be subsisting; a terminated marriage confers no immigration benefits
ii. However, under a humanitarian exception, the citizen’s death does not terminate immediate relative status if at the time of death the parties had been married for at least two years and were not legally separated
3. Legal impediments
