Asylum Information

The Hon. Edward Grant, Member, Board of Immigration Appeals

O'Neill’s Asylum Experience

Brian O'Neill has handled numerous affirmative and defensive asylum and withholding applications: his experience in these matters can be of substantial benefit to clients and their families seeking relief from persecution overseas. What follows are his personal observations on the workings of the asylum process, and some key pitfalls to avoid.

Although America has a great tradition of welcoming referees fleeing persecution overseas, the post-9/11 reality is that asylum claims are now subject to complex procedural requirements, deadlines, numerous bars to relief (such as the one year filing deadline, persecution and “material support” bars), and the strictest factual scrutiny.

Affirmative Asylum Applications and Relief

The standard for grant of basic asylum relief is that the applicant demonstrates he or she is unwilling or unable to return to the home country because of past persecution, or a “well-founded fear” of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion.

An asylum claim for an alien physically present in the United States and not in Government custody can be presented affirmatively, by filing an I-589, “Application for Asylum & for Withholding of Removal,” at a regional USCIS service center and subsequent appearance at an interview scheduled by USCIS at a local asylum office.

If the asylum claim is granted after the Asylum Office interview the applicant acquires “Asylee” status and can apply to become a lawful permanent resident within one year of the asylum grant. An Asylee can also petition (I-730) to have his or her spouse and minor children still in the home country join him or her as refugees in the USA. Because an asylum grant carries with it the great benefit of potential legal permanent resident status for the applicant and his or her immediate family, it is a discretionary remedy that can be denied if the adjudicator finds undesirable elements in the applicant’s background that do not amount to an outright bar.

What Happens if an Affirmative Asylum Application is Denied?

If an affirmative asylum claim is denied, and an applicant is in lawful status at the time of denial, he or she keeps the status held when the asylum application was first made. If the applicant is not in lawful status at the time of the denial, the local asylum office will refer the applicant’s case to one of the immigration courts administered by the Department of Justice’s Executive Office for Immigration Review (EOIR) for initiation of “removal” (deportation) proceedings against the applicant. There the asylum claim can be re-presented defensively with additional evidence to show that the applicant is entitled to relief. Here too grant of asylum is a remedy that rests in the sound discretion of an immigration judge (IJ).

The One Year Deadline for Any Asylum Claim

Whether presented affirmatively or defensively a basic asylum claim must first be asserted within one year of the applicant’s last arrival in the U.S. or, subject to very narrow exceptions, it will be considered barred.

Defensive Asylum, Withholding of Removal and Withholding Under “CAT”

Fortunately, other asylum-type relief outside the one-year deadline is available to an applicant in immigration court. An applicant can claim a right to “Withholding of Removal” and/or “Withholding under the Convention Against Torture” (CAT) relief. Unlike asylum, these are mandatory forms of relief where proper supporting evidence is presented. The standards of proof for both withholding and withholding under CAT are higher than for asylum, however, and neither form of relief carries with it a right to apply for permanent residency. Technically, while the applicant can live and work in the U.S., he or she is still subject to a removal order that could be enforced if the Government were to establish that the reasons for withholding no longer exist. Just as importantly, unlike asylum, a person granted either kind of withholding relief cannot travel overseas without giving up his status in the U.S. and not being allowed to return!

Timing is Key for “Arriving Aliens” Who May Want to Claim Asylum

An alien arriving at a U.S. port of entry who considers making an asylum claim must exercise the greatest care in the timing of its presentation. The slightest misstep by a potential applicant during initial inspection—verbally claiming asylum when he or she has otherwise valid entry documents—will result in on-the-spot invalidation of those documents. It will also mean an extended stay at a federal detention center where the applicant must present his asylum claims in defense of a removal proceeding initiated by DHS. Thus, it is almost always preferable for an applicant with valid entry documents to defer final decision on the making of an asylum claim until after he or she is inspected and admitted to the U.S., so long as the claim is made within the one-year deadline.

The main entrance of the “Elizabeth Detention Center” located at 625 Evans Street, Elizabeth, New Jersey. It is run by Corrections Corporation of America (CCA) under contract with DHS. Asylum claimants who are “arriving aliens” can expect a months-long stay here waiting for their cases to be heard. The facility also houses a small two- judge Immigration Court and offices for local DHS/ICE District Counsel, who prosecute removal cases and vigorously contest asylum claims.

Special Problems with False Travel Documents

An alien with false documentation, on the other hand, is well advised to make his or her initial claim for asylum at the port of entry at the first available opportunity. Greatly improved security procedures at U.S. ports of entry make detection of false identity or entry documentation a virtual certainty. Thus, a legitimate applicant with false documents must come prepared to tell his story at the port of entry, after which he or she will usually be transferred to a detention center (where the applicant will have another “credible fear interview” administered by a USCIS Asylum Officer) and then be placed in removal proceedings.

Seeking to enter on false documents will not only result in a applicant automatically being considered ineligible for release from detention on “humanitarian parole,” but will also subject him or her to a Government claim of attempted fraudulent entry. Such a claim can be made administratively, in the removal proceedings, but it may also be made in separate federal criminal charges against the alien. If these charges are proved, and the alien fails in his or her asylum claim, the finding of fraud can operate as a permanent baron immigration to the U.S.

Credibility and Content are Crucial

A lawyer’s assistance preparing and presenting the I-589 application for asylum and withholding is of the highest importance. While the purpose of the form is for the alien to present his or her claims with specificity, there are great perils in an applicant’s being too detailed in written presentation of the facts in an I-589.

Factual credibility where the claim qualifies for asylum-type relief is the most important factor leading to asylum and withholding grants. Inconsistencies in what an applicant has written, and what he or she testifies to (or has stated at a port of entry or during a “credible fear interview) is one of the most frequently cited reasons why claims are denied. Immigration Judges, moreover, are given great latitude in matters of credibility; under the “REAL-ID” Act passed into law in May 2005, an IJ can deny relief even for minor inconsistencies that do not “go to the heart” of an asylum claim. Thus, it is vital that an applicant secure the assistance of immigration counsel to put just enough in an I-589, so that it does not fail for lack of specificity, but not so much that it can cause “inconsistency problems” later on, both in the applicant’s testimony and in corroborating evidence.

The Importance of Corroborating Evidence

Corroborating evidence in asylum claims is equally crucial to success. Theoretically, a claimant can meet the burden of proof through his or her own testimony alone. In practice, especially after the 2005 passage of the REAL-ID Act, an applicant must present corroborating evidence to support the specifics of his or her claim—such as witness statements, documents confirming the facts of persecution such as newspaper reports, hospital records, complaints to authorities, etc. If such evidence isn’t available, a claimant will still be required to submit substantial evidence of efforts made to acquire the evidence and why it could not be obtained.

Preserving Your Refugee Status after the Grant of Relief

Even after an alien obtains “asylee” status, he or she must take great care to preserve it. Availing oneself of the benefits of the country from which the asylee has fled, such as using the country’s passport to travel—or even worse returning there for a visit—can result in loss of asylee status. Instead, an asylee traveling overseas must obtain a U.S. “Refugee Travel Document,” and should also take care to use it after becoming a lawful permanent resident (LPR). Even when an asylee becomes a citizen, he or she should avoid returning to his country of origin, lest our Government decide that the citizenship was procured by fraud, and that denaturalization proceedings are appropriate. Immigration counsel should be consulted before any of the above situations become real life legal problems. Remember too, that those granted Withholding of Removal or Withholding under CAT can’t travel overseas at all without losing their U.S. status.