Asylum

"Refugees" and "Asylees"

A person who is not a United States citizen but who is in the United States is eligible for a grant of asylum if she or he qualifies as a refugee. Generally, a refugee is a person who demonstrates persecution or a well-founded fear of persecution on account of that person's race, religion, nationality, membership in a particular social group, or political opinion. The persecution may be at the hands of the government of the person's country, or at the hands of those whom the government cannot or will not control.

What is the difference between a refugee and an asylee?

Refugees and asylees are people seeking protection in the U.S. on the ground that they fear persecution in their homeland. A refugee applies for protection while outside the United States. An asylee differs from a refugee because the person first comes to the United States and, once here, applies for protection. Refugees generally apply in refugee camps or at designated processing sites outside their home countries. In some instances, refugees may apply for protection within their home countries, such as in Cuba, and Vietnam. If accepted as a refugee, the person is sent to the U.S. and receives assistance through the “refugee resettlement program”.

What is a Well-Founded Fear of Persecution

An asylum applicant must establish that she was persecuted or that she actually fears persecution (subjective belief) on account of one of the five grounds, and that a reasonable person in the applicant's position would also fear persecution (objective standard) on account of one of the five grounds. "Persecution" means "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."

Past Persecution and Well Founded Fear of Persecution and Countrywide Persecution

A person can qualify for asylum either on the basis of past persecution or a well-founded fear of persecution or a combination of both. Generally, a finding of past persecution results in a presumption of a well-founded fear of persecution.

Procedure for Applying for Asylum Status

Like a refugee, an asylum applicant must also prove that he has a ‘well founded fear of persecution” based on his race, religion, membership in a social group, political opinion or national origin. Once granted asylum the person is called an Asylee.

Individuals Inside the U S may apply for asylum in one of two ways.

A. The application may be submitted “affirmatively by mailing it to an Bureau of Citizenship and Immigration Service (BCIS) Service Center. The BCIS will schedule an interview with a specially trained asylum officer in one of the eight asylum offices in the USA.
B. “Defensive application is submitted as a way to prevent deportation when an asylum seeker is in removal proceedings. In defensive cases an Immigration Judge decides the application.

In either instance the application must be submitted within one year of entry to the US, or the person will be found automatically ineligible. Exceptions are allowed for extraordinary circumstances (see “Bars to Asylum” section below).

An asylum application usually consists of (i) the actual official form for asylum, (ii) affidavit (your story describing in detail the reasons you are applying for asylum, the basis for your fear in returning to your home country, country conditions, political situation in your country, etc.), (iii) supporting documentation for your statements in the affidavit, (iv) passport, (v) photos, (vi) marriage certificates, birth certificates, and (vii) other documentation. How we can help you.

The success of your application for asylum, among other factors, usually depends on:

Individual circumstances, experiences of the applicant, and country conditions

How well the case is prepared and documented

The amount of harm (persecution) that have already resulted and the harm that would or might result

How the applicant answers at an asylum interview. Whether the applicant appears to be CREDIBLE to an asylum officer and the claim of fear of returning to home country GENUINE

Policies of the US towards applicants from particular countries.

A person can apply for asylum EVEN if he has no legal immigration status in the US (e.g., the status has expired). After the asylum application is accepted by BCIS the person can legally remain in the country while his application is pending. The person can then apply for a Travel Document (“Advance Parole”) if he/she needs to travel out of the country. The travel to the home country is, however, not recommended as it can undermine the person’s claim of fear.

Usually an applicant would get an appointment for an interview with an asylum officer within two months from the date of filing your application. If everything goes well at an interview asylum will be granted after the interview and the person will receive the decision in a few weeks. If the asylum is not granted at an interview, the case will be referred by an asylum officer to an immigration judge. The immigration judge will schedule a hearing day from 3 to 12 months depending on the workload of a particular immigration court.

The asylum applicant can apply for a work authorization within 150 days from the date of filing the initial asylum application.

If asylum is denied by an immigration judge the applicant may file an appeal with the Board of Immigration Appeals (in Falls Church, VA).

While there is no limit on the number of people who may apply for asylum, of those applicants who apply based on a claim of persecution for coercive family planning reasons, only 1,000 may be granted. In Fiscal year 2001 more than 20,600 asylum applications were approved.

Like refugees, asylum seekers must, in addition to proving a well-founded fear of persecution, be screened to ensure they are not inadmissible to the US for some reason, such as criminal activity. Applicants for asylum must submit fingerprints and they are subject to check of all appropriate records and Information databases including FBI, BCIS, and State Department databases.

In recent years, the concept of what constitutes a social group that may be targeted for persecution has evolved. For example, some Women seeking asylum have based their claims on domestic violence. In this case, the civil authorities of the country have been unwilling to intervene in life-threatening situations, leaving a woman totally at the mercy of be-abuser unless she flees for her life. Sexual orientation has also served as the basis for successful asylum claims in some cases. In either case it is not only direct persecution by the government that serves as the basis for an asylum claim, but also the unwillingness of the government to protect someone who is in serious danger.

How does someone gain refugee status?

To qualify for refugee resettlement in the U.S., a person must come from a country designated by the Department of State. The person must meet the definition of a refugee by proving that she has a well-founded fear of persecution. The refugee applicant must prove that this fear is based on the possibility of persecution because of her race, religion, membership in a social group, political opinion, or national origin. In addition, a refugee must fit into one of a set of “priority” categories, which factor in degree of risk to the refugee’s life, membership in certain groups of special concern to the U.S., and existence of family members in the U.S.

The Bureau of Citizenship and Immigration Service (BCIS), in its overseas offices, makes a determination on refugee status on a case by case basis. If the BCIS decides the individual meets the refugee criteria, the refugee must undergo an additional screening for possible medical or security reasons that might make him or her inadmissible to the U.S.

Bars to Asylum

An otherwise eligible applicant for asylum may be barred from applying for asylum if:

He or she did not file within one year after the date of his or her last arrival in the United States, unless he or she can establish eligibility for one of the exceptions to the one year rule (changed country conditions, change in personal circumstances);

He or she participated in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion;

He or she has been convicted of an aggravated felony or other particularly serious crime constituting a danger to the community of the United States;

There is a serious reason to believe that he or she has committed a grave nonpolitical crime outside the United States prior to arrival in the United States;

There are reasonable grounds for regarding him or her as a danger to the security of the United States;

He or she is inadmissible or removable as a result of terrorist activities, unless the Attorney General determines that these are not reasonable grounds for regarding the person as a danger to the security of the United States;

He or she firmly resettled in another country prior to arriving in the United States;

The Attorney General determines that there is a safe third country to which he or she may be removed pursuant to a treaty where the person's life or freedom would not be threatened and where he or she would have full access to a full and fair procedure for asylum;

He or she previously filed for asylum and was denied by an Immigration Judge or the Board of Immigration Appeals, unless he or she can demonstrate changed country circumstances which would materially affect his or her eligibility for asylum.

Burden of Proof and Standard of Persuasion

The asylum applicant has the burden of proving eligibility for asylum or withholding and establishing that the grounds for denial do not apply. The precise standard of persuasion for asylum is not clearly set forth in any statute or case. Nevertheless, the cases indicate that an asylum seeker must establish that he has "well founded fear," a "reasonable possibility" of persecution, a "credible subjective evidence" standard-- something less than the preponderance of evidence standard. An applicant for withholding of deportation or withholding must prove his claim by showing a "clear probability" of persecution. A preponderance of evidence standard is required for establishing eligibility for withholding.

Recent Changes in Asylum Law

Expedited Removal: Individuals seeking to apply for asylum upon arriving at a U.S. airport or other port of entry are subject to a recently-created expedited removal system. If an asylum seeker arrives with false or no documents, he must establish a fear of persecution in an on-the-spot interview before an immigration officer, or face immediate deportation. Of the persons identified for expedited removal, only about 1% get beyond the on-the-spot interview and see an asylum officer. Of those, about 88% convince asylum officers that they have a credible fear of persecution and are given the chance to make their case to an Immigration Judge. An immigration judge may review a negative decision within seven days. This expedited removal system is responsible for the removal of approximately one half of all persons removed from the U.S.

Automatic Detention: This new policy was introduced by a new Department of Homeland Security in March 2003. Asylum seekers fleeing from the following countries may be subject to detention at the US border and may not be eligible for parole: Iraq, Iran, Sudan, Somalia, Eritrea, Afghanistan, Algeria, Egypt, Uzbekistan, Morocco, Malaysia, Pakistan, Bangladesh, Bahrain, Djibouti, Kazakhstan, Kuwait, Lebanon, Libya, Oman, Qatar, Syria, Tunisia, Thailand, Yemen as well as Gaza and the West Bank. Only asylees arriving at the border will be detained; affirmative applicants will likely not be detained.

How many refugees does the U.S. accept?

The United States accepts a limited number of refugees each year. This number is determined by the President in consultation with Congress. In fiscal year 2002, for example, 70,000 refugees were permitted to come to the U.S. The total number of refugees admitted is divided among different regions of the world. In fiscal year 2002, the regions and the numbers, of admissions are:

Africa - 22,000

Eastern Europe - 9,000

Former Soviet Union - 17,000

East Asia - 4,000

Near East/South Asia - 15,000

Latin America and the Caribbean - 3,000

There are no limits on the number of asylees, people applying within the US.

Permanent Residency After Grant of Asylum

What happens after the asylee/refugee status is granted?

After refugees/asylees have been in the U.S. for one year, they are eligible to become permanent residents. Like refugees, asylees may apply for permanent resident status after one year. Unlike refugees only 10,000 asylees each year are allowed to become permanent residents. Reform of the asylum system in 1995 resulted in a streamlined process that has resulted in more timely decisions. Since the reforms were instituted, more than 10,000 persons each year have been granted asylum. This fact, coupled with the annual adjustment of status limit, has created a backlog of applications for permanent residence. In March of 2001, there were more than 57,000 applications in the backlog. This means that someone granted asylum today would have to wait not one year, but approximately eight years before becoming a permanent resident (and then another five years before gaining eligibility for citizenship).

What financial benefits and assistance do refugees receive?

The circumstances under which refugees leave their country are different -from those of other immigrants. Often they are fleeing persecution without the luxury of bringing personal possessions or preparing themselves for life in a new culture. Recognizing this fact, the federal government provides transitional resettlement assistance to newly arrived refugees.

Private voluntary agencies contract with the Department of State to provide for a refugee’s food, housing, employment, medical care, counseling, and other services in the first 90 days to help the refugee make the transition to economic self-sufficiency. Certain refugees are entitled to a special program of Refugee Cash and Medical Assistance provided by the US Department of Health and Human Services and administered by the state in which the refugee resides.

While most newly arriving immigrants are barred from receiving Supplemental Security Income (SSJ), Medicaid, and Food Stamps until they become citizens, refugees are exempt from this ban for the first seven years after they gain refugee status.