Assylum

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Refugees v. Asylees

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1. To be eligible for either refugee or asylum status, an applicant must qualify as a refugee, under the definition in INA 101(a)(42)
2. Although the refugee and asylee must satisfy the same basic requirements, the refugee applicant applies from abroad, whereas the asylum applicant seeks relief while present in the United States (or at its border).

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Protected Grounds

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• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion

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Refugee Qualifications

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To be eligible for either refugee or asylum status, an applicant must qualify as a refugee, under the definition in INA 101(a)(42)

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2 Asylum Procedures

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1. Affirmative Application

2. Defensive Application

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1. Affirmative Application

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An individual may affirmatively apply for asylum by completing an asylum application and filing it with a DHS asylum officer.
A. An “asylum officer” receives the application (I-589), interviews the applicant, and makes a decision.
B. In general, asylum officers refer applicants not found to meet the standards for asylum to immigration court, rather than deny the applications.
C. An immigration judge then considers the asylum claim further in the course of removal proceedings.

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2. Defensive Application

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If removal proceedings are already underway, the applicant can apply for asylum only by presenting a defensive application that is heard exclusively by the immigration judge.
A. Typically, at the master calendar hearing, the person states his wish to seek asylum as a form of relief.
B. The IJ then grants a specified period of time within which the application must be completed and filed with the immigration court.
C. The case is then litigated during one or more individual/ merits hearings, with examination and cross-examination by the noncitizen’s counsel (if he has one) and the DHS trial attorney.
D. Ultimately, the immigration judge’s decisions on either a referred affirmative claim or a defensive claim is appealable to the BIA
E. If the BIA rules against the claim for protection, judicial review may be available.

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The Substantive Criteria for Asylum

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1. Burden of Proof: The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in INA 101(a)(42)
2. Eligibility: The applicant may qualify as a refugee wither because: He or she has suffered past persecution; OR He or she has a well-founded fear of future persecution.

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PAST PERSECUTION: An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish 4 things

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1. That he or she has suffered persecution in the past in the applicant’s country of nationality
2. On account of (because of)
3. A Statutorily Protected Ground
4. AND is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution.

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1. That he or she has suffered persecution in the past in the applicant’s country of nationality (8 points)

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1) Persecution: With respect to the persecution element, the term persecution is not defined by the INA
2) The ninth circuit has defined persecution as “the inflict of suffering or harm upon those who differ… in a way regarded as offensive.”
3) Physical violence: physical violence generally is persecution - includes beatings, rape, and torture.
4) Threats of serious harm such as death threats, may also constitute persecution, particularly when they are combined with confrontation or other mistreatment.
5) Detentions: Likewise, detention and confinement may constitute persecution
6) That said, “mere economic disadvantage and mere harassment” does not constitute persecution.
7) It is worth noting that an applicant may have suffered persecution even though he or she did not seek medical treatment.
8) In other words, as one court put it, a person’s failure to “seek medical treatment for the injury suffered is hardly the touchstone of whether the harm amounted to persecution."

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2. On Account of (Because of) (7 points)

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1) Nexus: the applicant must show the persecution was “on account of” a statutorily protected ground. This is known as the nexus requirement.
2) For applications filed on or after May of 2005, an applicant must establish that a statutorily protected ground was at least one central reason for persecuting the applicant
3) Ultimately, the persecutor’s motivation may be established by direct evidence or circumstantial evidence
4) Direct evidence: direct proof of motivation may consist of evidence concerning statements made by the persecutor to the victim
5) Example: Soldiers stated that rape was because of the victim’s political opinion
6) Circumstantial Evidence: Circumstantial proof of motivation may include, among other things, the timing of persecution.
7) Example: police beat the victim at the political rally.

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3. A statutorily protected ground (5 Grounds)

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1) Race
2) Religion
3) Nationality
4) Membership in a particular social group
5) Political Opinion

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4. AND is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. (7 points)

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1) The unable or unwilling requirement means that the applicant must show the persecution was inflicted by:
2) The government, including the police, OR
3) Private person or organizations that the government is unable or unwilling to control.
4) Reporting Private Persons to the Police: In cases of non-governmental persecution (i.e.), persecution at the hands of private parties, the agency and courts may consider whether the applicant reported the persecution to the police.
5) Why? If a victim reports private persecution to the police and the police do nothing in response that is evidence that the government was unable or unwilling to control the persecutors.
6) That said, reporting private persecution to the police is not essential to demonstrating that the government is unable or unwilling to control the persecutors.
7) Indeed, an asylum applicant can use testimony or generalized country conditions information to show that reporting such activity would be futile.

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THE PRESUMPTION

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An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of future persecution on the basis of the original claim.

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Burden Switching

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The burden then switches to DHS to rebut this presumption of a well-founded fear of future persecution.

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Rebut The Presumption - 8 CFR 208.13

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DHS may rebut the presumption by showing, by a presponderance of the evidence, either that:
1. There has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality; OR
2. The applicant could avoid future persecution by relocating to another part of his or her country of nationality and under all the circumstances, it would be reasonable to expect the applicant to do so.

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Fundamental Change in Circumstances

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In order to show that there has been a fundamental change in circumstances in the applicant’s home country, the DHS must do more than merely;
1) Submit a state department report on country conditions and
2) Argue in a conclusory fashion that circumstances have changed in that country.

Rather, DHS must provide an individualized analysis of how changed conditions will affect the specific applicant’s situation.

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Internal Relocation

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In order to show that the applicant could avoid future persecution by relocating to another part of his or her country of nationality, the DHS must put forth evidence that…
1) There is, indeed, another part of the same country to which the applicant could safely relocate.
2) However, DHS must also show that, under all the circumstances, it would be reasonable to expect the applicant to do so.

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Reasonableness of Internal Relocation

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Determined by considering a variety of factors, including but not limited to:
1) Whether the applicant would face other serious harm in the place of suggested relocation;
2) Any ongoing civil strife within the country;
3) Geographical limitations; and
4) Social and cultural constraints, such as… age, gender, health, and social and familial ties

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Failure to Rebut THE PRESUMPTION

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If the government does not rebut the presumption of a well-founded fear of future persecution, then.. the applicant is entitled to asylum!

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Govt. Successfully Rebuts the presumption - Burden back on applicant - humanitarian asylum

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Applicant must demonstrate compelling reasons for being unwilling or unable to return to his or her country arising out of the SEVERITY of the past persecution.

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Humanitarian Asylum

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C. This avenue for asylum is rare.
i. It is reserved for situations of atrocious persecution, where the applicant established that, regardless of any threat of future persecution, the circumstances surrounding the past persecution were so unusual and so sever that the applicant is unable to return to his home country.
ii. In deciding whether an applicant is entitled to humanitarian asylum on a severe past persecution theory, an immigration judge will often compare the facts of the applicant’s case to the facts in MATTER OF CHEN, a landmark case where the BIA granted humanitarian asylum.

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Bars to Asylum

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1. The one-year bar
2. Firm Resettlement Bar
3. Persecutor Bar
4. Security Dangers and Terrorist Activity

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1. One-year bar to asylum - INA 208

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A. General Rule: According to INA 208, an asylum applicant must file his application within one year of arriving in the United States.
B. Exception: A late application may be considered if the applicant establishes “extraordinary circumstances” directly related to the delay in filing the application.
i. According to federal regulations, extraordinary circumstances may include:
1) Serious illness or mental or physical disability, including any effects of past persecution; or
2) Legal disability (e.g., the applicant was a minor or suffered from a mental impairment); or
3) The death or serious illness or incapacity of … a member of the applicant’s immediate family.

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2. Firm Resettlement Bar to Asylum

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General Rule: An applicant may not be granted asylum if he or she was firmly resettled in another country prior to arriving in the United States.

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3. Persecutor Bar

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The Persecutor Bar: A person who “ordered, incited, assisted, or otherwise participated in the persecution” of any person on account of one of the five grounds may not be granted asylum.

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4. Security Dangers and Terrorist Activity

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You can't be a threat to the US