6 Asylum

For those who are currently in the U.S. and fear returning to their home country because of persecution, seeking asylum is a possible solution. Asylum is available to those aliens who have a "well-founded" fear of persecution. The end result of the asylum process is the opportunity to adjust one's status to permanent resident.

There are four basic elements that must be satisfied for an applicant to qualify for asylum:

1. The applicant must be afraid that s/he will be persecuted OR has suffered persecution in the past.

2. Fear of future prosecution must be "well-founded"

3. The persecution must be because of membership in a political or social group, or because of nationality, race, or religion.

4. Asylum should be granted in the officer's exercise of discretion.

What constitutes a well-founded fear?
This involves a reasonable person standard. An applicant will be considered to have met this element if a reasonable person in the applicant's situation would also have a fear of returning to the applicant's home country. Specifically, this can be determined by answering the following questions:

Does the applicant uphold a belief or possess a characteristic that the persecutor seeks to defeat?
Is the persecutor cognizant that the applicant possesses that characteristic/belief?
Does the persecutor have the capability to punish the applicant?
And, does the persecutor have the desire to punish the applicant?

If the answer to these questions is "yes", then the applicant can demonstrate a well-founded fear.

Persecution has been defined to be suffering or harm that is inflicted upon the applicant. The purpose is to punish him for possessing a characteristic or adhering to a belief that the persecutor wants to overwhelm. The persecution is typically inflicted by the government. However, other groups can inflict persecution if the government is unwilling or unable to stop it. A country experiencing internal turmoil is insufficient to establish persecution. But if that turmoil leads to the punishment of a particular group, that may be sufficient to show persecution.

Even if other elements to an asylum claim are met, an applicant can still be denied in the exercise of the asylum officer's discretion. Asylum officers and immigration judges will weigh the pros and cons of granting asylum to an applicant. Factors such as the applicant's age, health, criminal background, and fraud committed by the applicant are some of the factors considered. Fraud becomes especially relevant when the applicant used a false passport and visa stamp to enter the U.S. However, generally speaking, even if there are few adverse factors weighing against the applicant, asylum may still be granted. This is because a weighing of the factors shows that the danger of persecution outweighs most negative factors.

If an applicant has been persecuted in the past, it is vital that she includes an affidavit that details the persecution. The applicant should spend sufficient time preparing the affidavit. The affidavit should give the asylum officer a clear picture of the persecution the applicant has experienced and what additional persecution could be experienced in the future.

There are other supporting documents that could be included to document the persecution. These include newspaper articles, descriptions of the political/social conditions, expert opinions, and testimonies by friends or relatives who are in similar situations and face similar persecution.

If an asylum officer grants the request for asylum, the applicant is considered an asylee and will eventually be permitted to adjust his status to permanent resident. This will occur after one year of being granted asylum. However, asylum status may be terminated if there is a change in the applicant's home country so that there is no longer a fear of persecution.

If the applicant is denied while the applicant is in status under a different visa category, no administrative appeal is available. Thus a specialty worker who has an H-1B1 visa valid until January 1, 2001 will not be able to file an administrative appeal if he is denied asylum. However, if the applicant's visa status has expired, then the alien is placed in removal proceedings before an immigration judge. In this situation, the alien may renew his application for asylum.

Documents Needed to Apply for Asylum

1. Form I-589 "Application for Asylum and Withholding of Removal". The applicant must submit the original and three copies. If you have family members, you must submit one copy for each family member.

2. Supporting documents. Submit one original and three copies.

3. Two INS (NOT passport!) photographs for you and each family member (regardless of age). These pictures must be taken within 30 days of your filing the application.

The supporting documents will address different issues. You will need to produce evidence proving your relationships between your children and spouse. This can be accomplished through birth records and a marriage certificate. If such documents are not available, an affidavit by a third person who is familiar with relationship may be used in their place.

If you think that you might be considered to have firmly resettled in another country, then you will need to produce evidence showing that this is not the case. That is, you must show that you have not been offered permanent resident status by another country other than your home country. If you have been offered permanent residence in another country, then you might be denied asylum and told to go to that third country.

If there are any factors about your history that might lead an officer, in her discretion, to deny your case, then you will need to produce evidence explaining the facts. For example, if you entered the U.S. using a fraudulent foreign passport and visa stamp, you must explain the circumstances of the persecution you were fleeing. In this light, the fraud engaged in will not be considered as significant a negative factor.

In addition, you may want to submit the following documents:

á Copy of your entire passport (cover to cover)

á Copy of any U.S. immigration paperwork including the white I-94 departure card.

á A copy of your birth certificate with translation, if necessary.

á Background supporting documents: these could include newspaper articles, affidavits from witnesses or experts familiar with the persecution. Journals and books may be submitted as can be photographs. If you do submit additional documents, be sure to include an original and three sets of copies.