Immigrants fleeing persecution in their home country can find a safe haven in the United States. The U.S. grants asylum to individuals who have been persecuted or fear persecution on account of their race, religion, nationality, membership in a particular social group, or their political opinion. Immigrants can apply for asylum when they are in the U.S., or upon arrival at a point of entry into the U.S. After being granted asylum, the asylee as well as his dependants may be eligible to apply for their green cards.
In order to be granted asylum the applicant must have suffered past persecution or fear future persecution in their country of nationality, the fear must also be “well founded” and that they are unable or unwilling to return to their country of nationality. A well-founded fear of persecution can be established by showing that there is a reasonable possibility that the applicant will be persecuted on account of one of the five enumerated grounds.
A person may be barred from seeking asylum for several reasons. They include persecution of others, conviction of a particularly serious crime, or reasons to believe that the person has committed a serious nonpolitical crime outside the U.S. prior to their arrival into the U.S. Other reasons include reasonable grounds for regarding the person as a danger to the security of the U.S. or firm resettlement in a third country prior to arriving in the U.S.
To apply for asylum, an application must be filed with the U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, within one year of arrival into the U.S. An application filed after the one-year deadline may be considered if the person demonstrates either the existence of “changed circumstances” which materially affected the applicant’s eligibility for asylum or “extraordinary circumstances” relating to the delay in filing the application within the one year of entry to the U.S.
Once the application is filed, the applicant will be scheduled for an interview at the local USCIS District Office. During the interview, the officer determines whether the applicant’s fear is subjectively and objectively reasonable. If the officer finds that the applicant does in fact have a well-founded fear of persecution, the applicant will be granted asylum and can remain in the U.S. If the officer does not determine that the applicant has a well-founded fear of persecution, the applicant will be referred to Immigration Court where they can renew the asylum claim, or seek any other relief for which the applicant may be eligible, before an immigration judge.
Asylum is a unique process which affords people who have a genuine fear of persecution an opportunity to find a safe haven in the U.S. However, some people are badly advised by notarios, legal consultants, and others who take advantage of their desperation. As a result, they file frivolous asylum applications in order to live and work in the U.S. A frivolous application contains information that the applicant knows to be untrue. If the Attorney General determines that the applicant knowingly filed a frivolous application for asylum and the applicant was aware of the consequences of filing a frivolous application, the applicant is permanently ineligible for any immigration benefits in the U.S.
The asylum process is complicated procedurally and legally. In order to ensure that an asylum claim is properly handled, seeking the assistance of an experienced immigration attorney would be well-advised.
Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Atty. Reeves has represented clients in numerous landmark immigration cases that have set new policies regarding INS action and immigrants' rights. His many successes have been published in Interpreter Releases, Immigration Briefings and AILA Monthly which are nationally recognized immigration periodicals widely read by immigration lawyers, State Department and immigration officials. His cases are also cited in test books as a guide to other immigration practitioners.
His offices are located in Pasadena, San Francisco, Beijing and Makati City.