Michigan Criminal Attorneys Blog
A person with a well founded fear of persecution if he or she returns to their country of origin may apply for Asylum before the USCIS. Also, a person who is in removal proceedings may apply before an Immigration Judge for: Asylum, Withholding of Removal (must prove by a more likely than not standard); OR seek protection under the Convention Against Torture (must prove that you might be tortured if returned to your home country).
In order to apply for Asylum, the applicant must demonstrate that they will be persecuted if they return to their country of origin based upon their (1) political opinions, (2) religious beliefs, (3) nationality, (4) race, OR (5) membership in a particular social group. Being a member of a particular social group means possessing a personal characteristic that is unchangeable, such as being: female; homosexual; having a birth defect, etc, and not something transitory and changeable such as a hairstyle, clothing preference, etc.
The persecutor has to be either the actual government of the country, OR a group that is active within the applicant’s home country that the government either cannot or will not control. Examples of this may be hardline religious groups seeking to impose certain beliefs, drug dealers that operate violently without police intervention, etc.
For all asylum applications it is necessary to have solid immigration legal representation. I recommend attorney Sufen Hilf of the law firm Hilf & Hilf, PLC.
Generally an applicant is not disqualified by passing through other countries on the way to the United States. If the applicant became firmly resettled in the country they passed through by being offered citizenship or permanent residency, this could be a basis to deny the Asylum application.
If the application for Asylum is granted, the applicant is allowed to live and work in the United States. This includes the spouse and any unmarried children under the age of 21 in the Asylum application if the spouse or children are in the United States.
To be eligible for Asylum, the applicant must either ask for it when entering the country at the port of entry, or file an application within 1 year of arrival to the United States. Even if the applicant entered the United States illegally, Asylum is potentially available. There are a few exceptions to the 1 year requirement, such as if the conditions in the country of origin changed, or personal circumstances changed, within 1 year of the Asylum request. Filing after the 1 year deadline expires is allowed if extraordinary circumstances prevented the applicant from filing within the 1 year period, so long as the application is filed within a reasonable time given those circumstances.
Eligibility for Asylum will be based on information provided in the Asylum application, and during an Asylum interview before an Asylum officer or an Immigration Judge. If the applicant is already in removal proceedings the issues will be decided by an Immigration Judge. Otherwise, an Asylum officer will interview the applicant to determine whether they are eligible for Asylum. The Asylum officer can either grant the application, deny the application, or refer the matter to an Immigration Judge for their decision. The Immigration Judge will make a decision as to removal if the applicant is determined to be ineligible for Asylum and illegally in the United States. If the applicant’s status is still valid, and a determination is made by an Asylum officer that the applicant is not eligible for Asylum, the applicant will receive a written notice of that fact, and given an opportunity to respond to that notice before a final decision is made on the application. If the Asylum application is granted, the applicant and his or her family can apply for permanent residency after 1 year of residing in the United States.
It is important to be represented by a competent, experienced immigration attorney to adequately prepare and prove the Asylum application, such as the attorneys at Hilf & Hilf, PLC. This matter should be treated as if the applicant’s life depended upon it. Such a potentially life changing situation should not be handled by someone other than a licensed, experienced, immigration lawyer.
It is very important to assemble the evidence carefully. The Asylum application must be accurate and complete. Inaccuracies will be held against the applicant, even if they are the fault of the person who completed the paperwork on the applicant’s behalf. Also, the application needs to be filed in the proper place, and within the proper time period as outlined above.
The Asylum application needs to be supported with exhibits. A State Department report should be included that tells of the conditions within the applicant’s country of origin. Sometimes private agencies, such as Amnesty International, will address the applicant’s particular Asylum circumstance and prove influential in the Asylum process. Affidavits in support of the application from individuals who are familiar with the applicant’s circumstances are helpful, and sometimes crucial.
In some cases, expert witnesses can help document the persecution and are persuasive to an Asylum Officer or Immigration Judge. For example, a University professor may have insight on the country conditions greater than information found in a State Department report. A medical doctor may be able to say that particular scars on the applicant’s body are consistent with torture.
It is not uncommon to lack paperwork from the county of origin in support of an Asylum application. The whole point of Asylum is that the applicant cannot return to the country of origin based upon a well founded fear of persecution. Furthermore, the country of origin may not want to admit to the existence of such persecution either directly or indirectly through paperwork.
If the applicant was persecuted before in their country of origin, this raises a rebuttable presumption that if he or she were returned to the country of origin that the persecution will happen again. The government can overcome this presumption by establishing that the conditions in the country of origin have substantially changed in a way that would prevent the persecution from happening again. Hence, if the applicant waits too long to file the petition, there is a risk that the need for Asylum could disappear.
It is very important that the applicant is truthful with their attorney, with the Asylum officer, and/or the Immigration Judge. If the applicant is untruthful by lying, or by leaving details out of the facts of the story, the attorney cannot properly prepare the case. In some instances, if the applicant was truthful, the attorney would have advised the applicant not to file the case because they are not eligible. By filing the case, the applicant is brought to the attention of the government, which could have negative consequences.
More importantly, if the Immigration Judge finds that that the applicant was not a credible witness, the Immigration Judge can deny the application on that basis. Worse, if the Immigration Judge concludes that the applicant filed a frivilous application – that the story was made up – the applicant becomes ineligible for Asylum and ineligible for any other form of relief (for example – marriage to a United States Citizen) that could have ultimately lead to a green card.
The first step in the process is to immediately hire an experienced immigration attorney that will prepare and present the case in the most complete and effective manner. Contact the attorneys at Hilf & Hilf, PLC today for issues regarding Asylum, or any of your immigration issues.