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What Is Asylum?

Asylum offers protection to foreign nationals who are seeking protection and have suffered persecution in the past OR they fear that they will suffer persecution in the future due to one of the following factors:

➢ Race

➢ Religion

➢ Nationality

➢ Political Opinion

➢ Membership in a particular social group

How Do You Claim Asylum?

There are three ways to enter into the process for asylum:

1. Defensive Asylum If Caught Entering The US Illegally Or Claiming Asylum At The Border

➢ If a foreign national is caught entering the U.S. illegally or presents themselves to an official at a US border or port of entry; AND

➢ Asks for asylum or states that he or she is afraid to return to his/her country

➢ The foreign national will then have a credible fear interview. If the foreign national passes the credible fear interview, he/she will be referred to the Immigration Court using a Notice of Referral to Immigration Judge on Form I-863 and will eventually receive a hearing on asylum and other related grounds such as withholding of removal and CAT protection.


➢ Applicants for asylum ARE allowed to contact an attorney before the credible fear interview

➢ Those who pass their credible fear interview may be eligible for parole while the case is pending

➢ It is highly recommended to seek legal help in the asylum process

2. Defensive Asylum If Put In Removal/Deportation Proceedings While Already In The US

➢ If a foreign national who is already living in the US is put into removal/deportation proceedings, he/she may seek asylum as a defense to being removed/deported


➢ Asylum is only available within the first year after entering the US except for very rare circumstances. However, there is the possibility of CAT Protection or Cancellation of Removal according to the circumstances.

3. Affirmative Asylum With The USCIS

➢ Affirmative Asylum is when someone who is already in the US (legally or illegally) submits a Form I-589 to the USCIS which puts them into an affirmative asylum process with USCIS rather than the EOIR (Immigration Courts).


➢ Affirmative Asylum is only available within the first year after entering the US except for very rare circumstances. Therefore, it is very important to submit Form I-589 before the expiration of the foreign national’s first year in the U.S.

What Is The Difference Between Affirmative Asylum and Defensive Asylum?

1. Adversarial vs Not Adversarial

➢ In Affirmative Asylum cases, the asylum adjudication is a non-adversarial interview with a USCIS Asylum Officer (however, if the Asylum Officer finds there are no grounds for asylum, the foreign national will be placed in removal proceedings in Immigration Court where he/she may claim defensive asylum).

• The foreign national does have the option of legal representation (a lawyer) which is highly recommended.

➢ In Defensive Asylum cases, the asylum adjudication is an adversarial process before an immigration judge in the EOIR.

• The foreign national does have the option of legal representation (a lawyer) which is highly recommended.

• A government attorney from ICE (Immigration and Customs Enforcement) will argue against granting asylum.

What Are The Benefits Of Asylum?

1. Work Authorization While You Wait – The Clock

➢ Although work authorization is not automatic upon the filing of an asylum case, an applicant may apply for employment authorization 150 days after filing (and can be issued such authorization within 180 days of filing)

• The clock for Affirmative Asylum begins when the form is filed with USCIS

• For defensive asylum, however, most immigration courts take more than a year or two (or more) for an initial hearing. As such, it is suggested that attorneys “lodge” their client’s application with the immigration court clerk and not just wait until the initial hearing.

• Furthermore, if the applicant loses in his/her asylum case and appeals to the BIA, the days pending appeal count towards the 180-day clock.

2. Granting of Asylum

➢ If the applicant has their application approved for Asylum through USCIS (Affirmative Asylum), they will receive an Asylum Approval Letter.

➢ If the applicant is granted asylum by an Immigration Judge with the EOIR -Executive Office of Immigration Review (Defensive Asylum), they will receive an Order Granting Asylum from the Immigration Judge.

• Note- an Order Granting Asylum is not final under 30 days have passed and ICE has not filed an appeal (or if ICE waives the right to appeal the decision)

➢ Once asylum is granted, the Asylee should obtain an I-94 card with a stamp showing the date when he/she was granted asylum (Affirmative Asylum grantees will receive the I-94 with their approval letter).

• Asylum is granted indefinitely and has no expiration date although the status can be terminated if there is a finding of fraud later on (and in other rare cases like returning permanently to their country of persecution).

3. Asylum For Applicant’s Family

➢ Derivatives: (spouse and unmarried children [under 21 on date application submitted]

• If the applicant listed his/her spouse and children on their initial application and included them as derivative applicants, they will receive asylum with the principal applicant.

➢ Derivatives Left Out:

• If a potential derivate was not included in the application (regardless if they live in the United States or not), the applicant has two years from the date of being granted asylum to file an I-730 Petition for such derivatives.

4. Permanent Resident Status

➢ 1 Year After Receipt of Asylum

• The Asylee (and his/her derivatives) may apply for Legal Permanent Residence 1 year after receiving asylum.

• Note- although there is no requirement to become a LPR, if DHS decides in the future that the Asylee no longer has a fear of returning, they may rescind their status if they have not become a permanent legal resident

5. Citizenship

➢ 5 Years After Receipt of Permanent Legal Residence Status

• Like most Naturalization processes, once the Asylee (and his/her derivatives) has had their permanent legal resident status for 5 years (and can show all the other prerequisites like continuous presence, etc), they may apply for Naturalization.

What Must You Prove In An Asylum Case?

1. Persecution:

➢ “A threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive.” (Matter of Acosta, 19 I&N Dec. 211,222 (BIA 1985).

➢ This definition is broad and can include much more than simply physical harm. It can also include serious economic deprivations, limits on essentials of life and mental and emotional harm. Furthermore:

• this includes the cumulative effect of the harm;

• the applicant’s subjective beliefs and character are required to be considered; and

• the individual, group, entity does not have to intend to harm the applicant for there to be persecution.

2. By A State Actor or Non-State Actor

➢ The applicant must show that either the persecution was committed by the state OR by a non-state actor (group/individual) that the government is unable or unwilling to control.

• Reporting an event or incident to the police is not required.

• Note- if the applicant can move to another area of the country and avoid prosecution, he/she will not qualify

3. Past Persecution vs. Well-Founded Fear Of Persecution

➢ Past Persecution – Rebuttable Presumption

• If the applicant can prove past persecution based on one of the protected classes, the burden shifts to the government to prove that the applicant no longer has a well-founded fear.

➢ Past Persecution – Humanitarian Asylum

• If the past persecution is particularly sever, the applicant may receive “humanitarian asylum” and it is NOT necessary for a future fear of persecution to exist

➢ Well-Founded Fear Of Persecution – Reasonable Possibility

• An applicant can establish a well-founded fear of persecution (WITHOUT showing past persecution) by demonstrating that there is a “reasonable possibility” he/she will suffer persecution in the future

• Reasonable Possibility is generally considered a 10% CHANCE of future persecution (based on the courts holding in INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)

• AND, the applicant must also show that they have a subjectively genuine and objectively reasonable fear of persecution if they return.

4. Nexus - Persecution On Account Of Protected Class

➢ The fear of persecution must be on account of

• Race

• Religion

• Nationality

• Political Opinion (of the applicant)

• Membership In A Particular Social Group

➢ What does “on account of” mean?

• It means that the persecutor was or will be motivated to persecute the applicant because the of the applicant’s race, religion, nationality, political opinion or membership in a particular social group (or at least the persecutor believes he/she belongs to one of those groups).

• The Supreme Court has established that “compelling circumstantial evidence is sufficient” if there is no direct evidence demonstrating the motivations of the persecutor.

➢ Subjective Intent of Persecutor

• One can persecute someone based on one of the factors even if their subjective intent is benevolent.

• For example, forcing someone to convert religions via harsh treatment may have the intent of “saving their soul” but it may still amount to persecution of that person on account of religion.

➢ Several Factors?

• Must show that one of the five protected classes “was or will be at least one central reason for persecuting the applicant.” (REAL ID Act of 2005).

What Counts As A Member Of A Particular Social Group?

1. Common Immutable Characteristic

➢ “Immutable Characteristic” is “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. Matter of Acosta, 19 I&N Dec. at 233.

2. Visibility – Social Distinction - Different Circuits Different Definitions

➢ 9th Circuit has found that it is the perception of society at large that determines whether a group is socially distinct (giving up the old requirement that there be some physical visibility).

• The 9th Circuit also emphasizes a case by case basis approach to social distinction

➢ This area of asylum law is seeing a lot of rapid change

3. Family As A Social Group

➢ Most courts have found that family relationships are a basis for “membership in a particular social group.”

• However, the BIA has found that the familial relationship need be a “strong and discernible bond” in that it is a “foreseeable basis for personal persecution.” Matter of M-E-V-G, 26 IN

4. Gender

➢ Whereas gender by itself may not be sufficient to define a particular social group, it may be sufficient in conjunction with other traits:

• Some successful examples:

• Gender & Political Opinion

• Gender & Domestic Violence

• Gender & Genital Mutilation

• Gender & Forced Marriage

5. Gang-Based Persecution

➢ This also varies widely depending on the circuit, but some courts have found former gang members are a particular social group and some (like the 9th Circuit) have rejected those grounds.

➢ Refusal alone to join a gang has also failed to prove a successful social group in most courts.

➢ Witness who testify (in court) against gang members, however, have been found to be a particular social group in the 9th circuit

6. LGBT Identities

➢ Lesbian, gay, bi-sexual and transgender individuals have been found to belong to particular social groups.