Asylum: Where they are from, why they are afraid to go back? who are you scary of? Publsihment
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, incite
o lawful sanctions, including the death penalty
G. § 29.07: Application procedure
1. Affirmative applications
a. Application materials
i. Aliens who are not in removal proceedings file an application for asylum on form I-589, together with supporting evidence, with the appropriate INS
ii. Be sure to review the provisions requiring filing of applications within one year of arrival in the United States
b. Employment authorization
i. An asylum applicant whose application has been pending at least 150 days may apply for employment authorization
ii. An application for employment authorization may also be filed immediately upon receiving notice that the application for asylum has been recommended for approval
c. Advance parole
i. The asylum applicant can receive permission to travel outside the United States by requesting advance parole
d. Interview and decision
i. The INS should schedule an interview with an asylum officer within 45 days after the asylum application is filed
ii. Failure to appear for a scheduled interview without prior authorization may result in dismissal of the application or waiver of the right to an interview
iii. The interview should be conducted in a non- adversarial manner
iv. An applicant is entitled to have an attorney or representative present, who may make a statement or comment on the evidence
2. Applications in deportation, exclusion or removal proceedings
a. If exclusion, deportation or removal proceedings have been commenced, the application for asylum must be filed with the immigration judge
b. An asylum application is deemed to constitute an application both for asylum and withholding of removal
c. An immigration judge may grant or deny asylum or withholding of removal; a negative decision must state the basis for the denial
3. Expedited removal proceedings
a. Those who seek admission to the United States without valid documents or with fraudulent documents are subject to expedited removal proceedings
b. On finding that the alien has a credible fear of persecution or torture, the asylum officer refers the alien to an immigration judge for a full consideration of the asylum claim in removal proceedings
c. Meanwhile, the alien is detained unless paroled
d. The district director may parole persons in the following categories;
i. Aliens who have serious medical conditions in which continued detention would not be appropriate
ii. Pregnant women
iii. Juveniles who may be released to a relative
iv. Aliens who will be witnesses in judicial proceedings
v. Aliens whose continued detention is not in the public interest
H. § 29.08: Admission as refugee
1. Aliens who are outside the United States may be admitted as refugee within numerical limitations set for each year by the president
a. An applicant who seeks admission as a refugee must submit an application to an INS office with jurisdiction over the area where the applicant is located
b. The applicant must submit to a medical examination and be sponsored by a responsible person or organization
c. There is no appeal of a denial of refugee status
d. Refugee status may be terminated if the alien was not a refugee within the meaning of the statute at the time of admission
I. § 29.09: Temporary protected status
Temporary refuge in the United States, called temporary protected status may be granted to nationals of countries that are experiencing ongoing armed conflict, severe natural disaster or other extraordinary temporary circumstances makin
