Introduction toRefugee & Asylum Law by Marshall H. Hong, J.D. www.Hong-Immigration.com www.ImmigrationInfoSite.com
(Disclaimer)This presentation is intended only as a brief introduction to Refugeeand Asylum law concepts. Many of the issues discussed are overlycomplex, and due to space limitations, this presentation necessarilyprovides simplified or summarized explanations of these issues.There may be exceptions to the general rules presented here, andchanges to the law may have occurred since the time of writing thispresentation.If you have questions regarding your particular situation, you shouldconsult with a qualified immigration attorney.At the conclusion of this slideshow you will find contact informationfor the author – please feel free to contact the author if you havespecific questions or would like additional information on this topic.
What is Refugee & Asylum Law? Certain (non-citizen or non-permanent resident) individuals can be permitted to enter and remain in the United States, for the purpose of receiving protection from harm in their home country. This presentation will briefly discuss Refugees and Asylees – those individuals seeking protection from persecution in their home countries. This presentation will NOT discuss the related form of protection known as Temporary Protected Status (“TPS”) please look for articles on TPS & related topics at: www.ImmigrationInfoSite.com
DefinitionsUnder the Immigration and Nationality Act(“INA”), a “Refugee” is defined as:“any person who is outside any country of suchpersons nationality or, in the case of a person havingno nationality, is outside any country in which suchperson last habitually resided, and who is unable orunwilling to return to, and is unable or unwilling to availhimself or herself of the protection of, that countrybecause of persecution or a well-founded fear ofpersecution on account of race, religion, nationality,membership in a particular social group, or politicalopinion”
DefinitionsAn “Asylee” is:A person who qualifies as a “Refugee” as defined in the INA,but who is physically present in the U.S., or who is arriving inthe U.S., at the time of applying for Asylum protection
Now in Plain EnglishA Refugee is a person who is seeking protection in acountry other than his home country, because he fearspersecution in his home country.Because of his fear of persecution, he is unable or unwillingto return to his home country.He is also unwilling or unable to seek or obtain protectionin his home country.He must demonstrate a “well-founded fear ofpersecution”, based on his belonging to one of five classesof persons protected under Asylum law (see next slide) …
Protected ClassesThe five “protected classes” under Asylum law are: Race Religion Political Opinion Members of a Particular Social Group Nationality (National Origin)
Now in Plain EnglishAn Asylee is basically a person who qualifies as aRefugee – as defined above – but who is already inthe U.S., or who is applying for entry into the U.S. (ata border or other point-of-entry), at the same time ashe is requesting protection from persecution in hishome country.
Elements of Asylum ClaimIn other words, in order to receive Asylumprotection in the U.S., an Applicant mustdemonstrate ALL of the following: A well-founded (reasonable) fear of persecution; based on his race, religion, political opinion, membership in a particular social group, or national origin; at the hands of the government (of his home country), or a group from which the government cannot or will not protect the Applicant; and Fear of persecution is “country-wide”
What is “Persecution”?Persecution is a threat to life or freedom, or theinfliction of suffering or harm . . . in a way regarded asoffensivePersecution can include arbitrary arrest anddetention, torture, physical abuse, death threats, oractual killingPersecution can also include being deprived of food,shelter, employment, or other life essentials
What is a “Well-Founded Fear”? An Applicant need not prove that he has suffered actual persecution in the past – he can show that he has a “well- founded fear” of future persecution, if he can show that a “reasonable person” in the same situation would fear persecution However, a showing of past persecution creates a presumption that the Applicant has a “well-founded fear” of future persecution
Fundamental Change in CircumstancesEven if the Applicant proves that he has been the victim ofactual past persecution, the Department of HomelandSecurity (“DHS”) can “rebut” the presumption of a “well-founded fear” of future persecution, if it can demonstratea “fundamental change in circumstances” (changedcountry conditions) in the Applicant’s home country.In other words, a showing of past persecution will NOT besufficient to demonstrate a “well-founded fear” of futurepersecution, if it is shown that changed country conditionsmake future persecution unlikely
Example of Changed Country ConditionsWhere the Applicant proves that he was persecuted in thepast by the government, it is presumed that he also has a“well-founded fear” of future persecutionHowever, if the DHS can show that there is a new government(or political party) in power in the Applicant’s home country,and that the new government is NOT likely to persecuteApplicant based on his race, religion, political opinion,membership in a particular social group, or nationality, then a“well-founded fear” of future persecution will no longer bepresumed(the end of a war or other conflict is another example of a“changed country condition” that can rebut the “well-foundedfear” presumption)
Must be a Member of One of the Protected ClassesNot all threats of harm or persecution will qualify anApplicant for Asylum protection – the fearedpersecution must be on account of the Applicant’s: Race Religion Political Opinion Membership in a Particular Social Group, or Nationality
More on Protected ClassesWhile the concepts of race, religion, and nationalityare self-explanatory, the “political opinion” and“particular social group” classes require furtherdiscussion:
Political OpinionPolitical Opinion can include Imputed Political Opinion.This means that the Applicant fears persecution based ona political opinion that he may not in fact hold, but onethat his persecutor believes him to hold – for example, anindividual believed to be a member of a rebel group, evenwhen not true.If the persecutor acts on the belief that the Applicant holdsa certain political opinion, which the Applicant in fact doesnot hold, then the Applicant may be entitled to Asylumprotection based on imputed political opinion.
Particular Social GroupMembers of a “Particular Social Group” can be defined asthose individuals who have a “common immutablecharacteristic”, such as sex, color, family ties, or in somecases a shared past experience or backgroundThe characteristic must be one that the group members“cannot change, or should not be required to changebecause it is fundamental to their individual identities orconsciences”Membership in the group must be visible or “perceivable”to other members of society – the group members mustbe readily identifiable as members of that group
Persecution at the Hands of the GovernmentThe Applicant must demonstrate that the persecutionthat he fears in his home country would be inflictedby the government of that country, or by some groupor entity from which the government cannot or willnot protect the Applicant
Fear must be “Country-Wide”The Asylum Applicant must demonstrate that he is unableor unwilling to return to any place in his home country. It isgenerally not sufficient to demonstrate that he is afraidonly to return to a particular part of his country.In other words, if the Applicant could reasonably relocateto another part of his home country and thereby escapepersecution, he will not be entitled to Asylum protection inthe U.S.
Other Eligibility RequirementsIn addition to proving ALL of the above-listed elements of anAsylum claim, an Applicant must also demonstrate eligibility. Thefollowing factors will make an Applicant ineligible for Asylumprotection in the U.S.: Generally, the failure to file an Application for Asylum within one year following entry into the U.S. (some exceptions apply) The Applicant will be barred from Refugee or Asylum status if he has ordered, incited, assisted, or otherwise participated in the persecution of any other person on account of race, religion, political opinion, membership in a particular social group, or nationality
Eligibility and Bars to Eligibility The Applicant will also be barred from Asylum Protection if: He has been convicted of a particularly serious crime in the U.S. He has committed or been convicted of a serious non-political crime outside the U.S. He has been a terrorist or has been a member of a terrorist organization He has been “firmly resettled” in another country prior to arriving in the U.S. (i.e. he has been granted asylum protection, permanent resident status, or citizenship in another country)
Affirmative vs. Defensive Asylum An Applicant can file an “Affirmative Asylum Application” (Form I-589) with the U.S. Citizenship and Immigration Service (“USCIS”); or An Applicant in Removal (Deportation) Proceedings can request Asylum Protection as a form of Relief from Removal – this is known as a “Defensive Asylum Application” (also filed on USCIS Form I-589)
Related Requests for Protection from Harm In addition to Refugee and Asylum Protection, certain individuals may be eligible to apply for the following forms of protection from harm: Withholding of Removal – similar to Asylum, but only available to Respondents already in a Removal (Deportation) Proceeding Protection under the Convention Against Torture (“CAT”) Temporary Protected Status – usually available generally to individuals from specified countries due to war, natural disaster, or other dangerous conditions
More on Refugees, Asylees, and other Immigration Law IssuesFor more information on Refugee and Asylum Law,and related issues such as Relief from Removal andTemporary Protected Status, please look for articles,videos, slideshows, and other materials at: www.ImmigrationInfoSite.com Thank you!!
For More Information, visit us at:www.ImmigrationInfoSite.com www.Hong-Immigration.com or contact Marshall Hong by email at: Marshall@Hong-Immigration.com