There has been much talk in the news recently regarding refugee and asylum procedures. United States law provides for the protection of people overseas from persecution. The refugee and asylum systems are complicated. This post attempts to shed some light on the processes.
Those seeking refugee status are persons outside the United States who seek entry to the United States because they are “unable or unwilling to return to, and [are] unable or unwilling to avail [themselves] of the protection of [their country of origin] because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
What qualifies as persecution? Courts have defined persecution as the infliction of suffering or harm in a way regarded as offensive. This can include both physical harm and substantial economic deprivation. The harm can be harm that as inflicted in the past or is feared in the future. The harm need not be inflicted by the foreign government but can also be inflicted by persons the foreign government is unable, or unwilling, to control. The fear must be “well-founded” such that a reasonable person would possess this fear.
The persecution must also be “on account of race, religion, nationality, membership in a particular social group, or political opinion.” There is a great deal of case law on the meaning of the terms race, nationality and membership in a particular social group, but courts tend to take an expansive view of these terms (or at least have done so historically). Recent cases have held that gender can count as membership in a particular social group, almost always in the context of gender-based violence towards women. This includes case law that treats domestic violence in certain counties as persecution based on membership in a particular social group. There has also been recent success for those seeking refugee status to flee gang violence in certain countries, particularly by informants, former gang members and family members of those targeted by criminal gangs. There are also protections for those fleeing coercive population control, such as forcible abortion or sterilization.
Discretionary denial of refugee status is permitted in cases in situations involving past persecution where a change of circumstances within the country of origin have eliminated any well-founded fear of persecution, or the applicant could relocate within the country of origin to avoid persecution. It is mandatory that refugee status be denied where: (1) the applicant ordered, incited, assisted, or participated in the persecution of others; (20 the applicant has been of a particularly serious crime (including any aggravated felony) in the United States and constitutes a danger to the community; (3) there are serious reasons to believe that the applicant has committed a serious, non-political crime outside the United States; (4) there are reasons to believe that the applicant constitutes a danger to the national security of the United States or is a suspected terrorist; (5) the applicant has been firmly resettled in a third country; (6) the applicant has previously applied for and been denied asylum in the United States or failed to file for asylum within one year after arriving in the United States; or (7) the person may be removed under a bilateral or multilateral agreement to a safe third country where the person’s life or freedom would not be threatened and where he or she would have access to a full and fair procedure for determining the asylum claim.
Ultimately the granting of refugee status and asylum is discretionary. The United States government caps the number of refugees permitted in a given year. Once a refugee is given a travel document that person has four months to come to the United States and seek admission and one year to apply for lawful permanent resident status.
Asylum procedures, which govern persons already inside the United States, differ slightly from overseas refugee procedures. Those who apply for asylum at a point-of-entry will be screened in an expedited removal process. This process will determine whether there is a “credible fear” of persecution, and if one exist, a hearing before an immigration judge will be set. The applicant may also request review of the credible fear determination by an IJ.
Persons already in the United States may submit a claim to an asylum officer. If the asylum officer denies the claim, removal proceedings will commence. Applicants may also make defensive claims of asylum when removal proceeding s have already commenced.
There are other methods for gaining entry to the United States to avoid persecution. These include withholding of removal, where an applicant makes a showing of “clear probability” of a “threat to life or freedom.” If this more demanding standard is set, entry must be permitted. Under the Convention Against Torture a person may not be removed to a country where there are substantial grounds for believing that the individual would be in danger of torture or subject to inhumane or degrading treatment. The burden is on the person seeking admission to prove this, but if proved, it is an absolute bar to removal. Finally, temporary protected status permits the U.S. government identify nationals of a particular country experiencing a national emergency who may stay in the United States during the period of the emergency, such as a civil war or natural disaster. The person must be in the United States at the time of TPS designation to qualify.
As one can see, there are many issues raised when considering a request for asylum or refugee status. If you have further questions, feel free to contact us for a free consultation with a U.S. immigration attorney.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.