A person inside the United States can obtain asylum for himself or herself (and derivatively for the asylum applicant’s spouse and/or unmarried children under 21 years old) if he or she can demonstrate that he or she has suffered past persecution or has a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Persecution in some circumstances may include, but is not limited to, physical abuse, mental abuse, interference with a person’s privacy, being forced to live in substandard dwellings, exclusions from work or educational institutions, constant surveillance, forced family planning, mutilation, etc. Whether or not a individual was or might be persecuted, or has a well founded fear of persecution, is a matter of interpretation. Persecution must amount to more than mere harassment or annoyance. Persecution can be either by the government or a group that the government cannot or will not control. If the applicant can establish past persecution, there is a presumption of future persecution. If past persecution is established there is a presumption of persecution and the burden shifts to the government to rebut that presumption. It is up to the applicant to prove a nexus (meaning that there is a relationship) between the past or feared persecution and its connection to the race, religion, nationality, membership in a particular social group, or political opinion of the applicant.
An asylum applicant only needs to show that there is a reasonable possibility that he or she will be persecuted. The well founded fear must be established both subjectively (meaning that the applicant actually has the fear) and objectively (meaning that there are specific facts through objective evidence or through persuasive credible testimony and that this evidence would cause a reasonable person to experience a fear of persecution). According to the important case of Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), there are 4 elements that the asylum applicant must show in order to establish a well-founded fear of persecution (1) the applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the applicant possesses this belief or characteristic; (3) the persecutor has the capability of punishing the applicant; and (4) the persecutor has the inclination to punish the applicant.
In order to gain asylum, the alien must persuade the Asylum Officer or Immigration Judge that he or she is credible. It is recommended that you hire the experienced immigration lawyers at Hilf & Hilf, PLC to handle your asylum claim. Pursuant to the REAL ID Act, an Immigration Judge may grant asylum based on the testimony of the applicant, but only where the applicant is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. Unless the Asylum Officer and/or Immigration Judge is satisfied that the applicant cannot reasonably obtain the evidence, the Asylum Officer and/or Immigration Judge may require additional evidence to corroborate the applicant’s testimony. In the vast majority of cases, due to the REAL ID Act, corroboration is required. What will be considered as corroborating evidence depends upon the specific facts of the applicant’s case. Examples of items which may constitute corroborating evidence include: affidavits, letters, newspaper articles, arrest records, medical records, photographs, etc., etc. Obviously, the quality, quantity, and credibility of the corroborating evidence all play a role in the decision reached as to the claim for asylum. All exhibits in a language other than English must have certified translations provided.
An applicant for asylum must file for asylum within 1 year of his or her arrival to the United States, unless the applicant can show changed or extraordinary circumstances that lead to their filing outside of this 1 year window. Other ways in which a person could be denied asylum include: the alien persecuted others; the alien resettled in another country prior to coming to the United States; the alien previously was denied asylum; certain criminal admissions and/or convictions can bar an alien from receiving asylum; aliens that pose a danger to the United States, such as terrorists, can be denied asylum; the alien may be removed pursuant to an agreement for the alien to be provide refuge in a safe third country, unless the Attorney General funds it in the national interest to grant asylum; the alien had the ability to reasonably relocate to another part of his or her home country to avoid the persecution; the country conditions changed to the extent that the well founded fear of persecution no longer exists.
The asylum process begins with the filing of an application. A person already in removal proceedings can file an asylum application subject to the 1 year filing requirement as outlined above. An application for asylum includes a Notice of Appearance Form (if the applicant is represented by a lawyer), a complete I-589 application signed by the applicant and anyone who helped prepare the I-589 application; Affidavit from applicant attached to the I-589; an Index of Documents; Evidence and Documentation to support the Asylum Claim; Evidence for family members seeking derivative status (birth certificates, marriage certificate, etc.); Passport photographs of each individual included in the application; and Certificate of Service upon the DHS Office of Chief Counsel for cases in removal proceedings. The applicant also must have fingerprints along with biometric and biographic information submitted for review. These fingerprints remain current for a period of 15 months, and must be current at the time of any merits hearing.
After an individual who is not in removal proceedings submits the application and related documents, he or she receives a notice to be fingerprinted. Thereafter, an interview is scheduled with an Asylum Officer who will ultimately make a decision to approve or deny the case.
If the applicant retained a lawyer, the lawyer will accompany him or her to the asylum interview. The interview is informal, and the applicant is required to bring his or her interpreter when necessary. The rules of evidence are very loosely followed. The Asylum Officer reviews the I-589 application and supporting evidence as outlined above and asks questions of the applicant. If there are any corrections that need to be made, those issues should be addressed at the beginning of the interview. The applicant should not rely upon his or her attorney to answer the questions. The attorney’s involvement at the asylum interview is usually limited to making sure that the applicant understood the questions asked, making sure that the applicant is not badgered or mistreated, and to provide a brief closing statement as to why the application should be granted. The asylum interview usually is anywhere from 1 hour to 3 hours in length. A written decision is eventually generated from the Asylum Officer.
If the applicant does not prevail at the asylum interview, the matter is scheduled for a Master Calendar Hearing before an Immigration Judge. Likewise, if the applicant is in removal proceedings at the time he or she files the asylum application, the matter is also scheduled for a Master Calendar Hearing before an Immigration Judge. The applicant and his or her lawyer must appear at the Master Calendar Hearing. At the Master Calendar Hearing the Immigration Judge will: find out if the applicant needs time to hire a lawyer if he or she has not obtained one (and will usually give additional time if the request is made); establish that the applicant has a copy of the Notice to Appear; ask the client (if unrepresented) or the attorney if he or she contests or concedes removability; has a country for removal designated; has the applicant or attorney state their desire to apply for asylum (and gives time to file the application if one hasn’t been submitted already); sets date and time for the merits hearing.
The merits hearing is a formal, contested Court hearing in which a lawyer is present to represent and litigate the government’s position. The rules of evidence are very loosely followed at a merits hearing. At the merits hearing the client (through his or her attorney if one is retained) and lawyer of the government are allowed to give an opening statement, present witnesses, testify, cross examine opposing witnesses, and most Immigration Judges will allow closing arguments. Before the merits hearing commences an opportunity is given for information that is outdated to be corrected. Exhibits are identified and admitted prior to the merits hearing as well. The Immigration Judge will eventually provide a written order as to his or her decision.
If the applicant is not successful at the merits hearing, he or she has the opportunity to appeal the decision to the Board of Immigration Appeals (BIA). The Notice of Appeal must be filed timely, along with the applicable filing fee and certificate of service. The Notice of Appeal must state specific grounds justifying the appeal. Failure to properly appeal will lead to the loss of the ability to appeal the decision. Once the Court transcripts are received, the applicant has 21 days to submit the appeal. If the applicant is unsuccessful he or she may have the opportunity to file a petition for review before the Court of Appeals for the Circuit with jurisdiction over the Immigration Court that presided over the merits hearing if the appeal is submitted timely.
The information contained in this blog is not a substitute for being represented by an experienced immigration lawyer. This blog is only intended to provide general information which may or may not be applicable to you own particular situation, and you are encouraged to contact an experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, immediately for any asylum or immigration related issue that you or a family member may have.
If you are considering applying for asylum it is recommended that you hire an experienced immigration lawyer:
1. Asylum involves United States Immigration law that is both complicated and ever changing. These challenges are even greater for individuals with potential language and cultural barriers. Failure to comply may lead to denial of the asylum application or could prevent the applicant from introducing evidence on his or her behalf. Lawyers are trained to present evidence in a way that is compelling and effective. A person who represents himself or herself is at a great disadvantage. The decision to not hire a lawyer could come at a great personal cost for the asylum applicant and his or her family.
2. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can help you prepare your I-589 application in a way that is legally sufficient and complete. Many asylum claims fail based upon the information contained, and/or the information excluded from, the I-589 application and the necessary supporting evidence;
3. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, may be able to help you obtain Employment Authorization during the pendency of the case to allow you to lawfully work in the United States;
4. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can help give you advice as to the type of corroborating evidence that will be necessary to help prove your case;
5. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can review the evidence that you assembled for defects and inconsistencies which could affect your chances of prevailing;
6. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can help prepare you to testify at the asylum interview and/or at the merits hearing. Someone who is not prepared to testify can appear to be not credible, inconsistent, vague, and/or evasive – which are all reasons given to deny an applicant’s request for asylum;
7. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can help you obtain expert witnesses, when necessary, to help support your claim. Examples of potential expert witnesses may include medical professionals to offer an opinion as to the nature of a scar or injury (if torture or abuse occurred), a psychologist to offer an opinion as to a psychological injury suffered by the applicant due to persecution (if such a condition exists), an expert as to the country conditions of a particular country or region, etc, etc.;
8. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can address issues that may arise at an interview with an Asylum Officer or the merits hearing before the Immigration Judge that can affect the outcome obtained. The issues may be based upon the quality of the translation provided, cultural issues, psychological issues, which could cause a misinterpretation of the individual or facts by the Asylum Officer or Immigration Judge;
9. The experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can make efforts to obtain a bond in matters in which the applicant is detained;
10. The stress level of the applicant and his or her family feels is usually reduced by retaining an experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC. We can help prepare you in a way that can reduce your level of stress and anxiety. Stress and anxiety can translate into nervousness, and nervousness can call into question how truthful you appear when questioned;
11. A successful interview with an Asylum Officer saves you the expense, time, and stress of a merits hearing and potentially an appeal. Success at a merits hearing saves you the expense, time, and stress of an appeal. Being adequately prepared increases your odds of success;
12. If you do not prevail at the asylum interview, an experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can represent you at a merits hearing before an Immigration Judge. If you do not prevail at the merits hearing, an experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can pursue an appeal on your behalf to try and reverse the decision of the Immigration Judge.
13. Appeals are based upon the record created at trial. If an inadequate or insufficient record is created, there may no basis for your appeal to even be considered;
14. An appeal if considered – even if it is ultimately unsuccessful – may allow you and your family to remain in the United States for years, depending upon the length of the appellate process.
15. If you are considering applying for asylum the experienced immigration lawyer, such as the lawyers at Hilf & Hilf, PLC, can advise and pursue on your behalf other forms of relief which may be beneficial to you and your family, such as: Withholding of Removal, the Convention Against Torture (CAT), Temporary Protected Status, T Visas for Victims of Human Trafficking, Voluntary Departure, etc.
Sometimes in life you only have one opportunity to receive the right result.
Hiring the right Immigration lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able – just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.