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ImmLaw
-The Internet Immigration Law Center
In the public interest, the ImmLaw Asylum section will eventually become quite extensive. Please check back periodically for expansion and updates.
The ability to immigrate to the US on the basis of an asylum request is cherished in the US. In a way, the Declaration of Independence was a claim of asylum. The US was first populated in significant part by political and religious refugees, and as a result the people of the US have always been especially sympathetic to asylum requests. A large body of immigration laws and procedures deals with this issue.
According to the Immigration and Naturalization Act (INA): The Attorney General (AG) shall establish a procedure for an alien physically present in the US or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the AG if the AG determines that such alien is a "refugee" within the meaning of the law.
A "refugee" is defined as "any person who is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution (or a well-founded fear of persecution) on account of race, religion, nationality, membership in a particular social group, or political opinion."
From these two statements has grown a very sizable body of law, regulations and procedures as well as case law.
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The US Refugee Act of 1980 (Refugee Act) sets forth the legal framework for US asylum law. The Refugee Act was an attempt to codify and bring US refugee law in line with international (United Nations) conventions. US asylum law has been derived from and is greatly influenced in application and interpretation from international refugee law.
- Customary International Law and Treaty
Persons crossing national boundaries to seek asylum from persecution are somewhat protected by customary international law and binding international treaties. Customary refugee law and practices have humanitarian and political authority. This type of law undergoes constant development as advocates seek to find better and expanded solutions to refugee problems. Treaties have the binding force of law unless contradicted by later acts of Congress.
- International Refugee Law and Treaties
The principal codification of international refugee law came about after W.W.II in the United Nations Convention Relating to the Status of Refugees of 1951. Over 100 nations have acceded to this UN refugee convention. This Convention established the definition of a refugee as one with a "well-founded fear of persecution", a concept that has come to lie at the heart of US Asylum law.
The US acceded to the United Nations Protocol of 1967 in 1968 and adopted the UN Conventions Relating to the Status of Refugees. Thereby the US assumed the obligation to not return refugees to a country where their lives or freedom would be threatened on account of race, religion, nationality, or political or social membership or beliefs. The US did not here agree to grant such refugees asylum in the US.
- US Law - Refugee Act of 1980 and Statutory Authority
The US Refugee Act of 1980 (Refugee Act) sets forth the legal framework for US asylum law. The Refugee Act was an attempt to codify and bring US refugee law in line with international (United Nations) conventions. It sets forth US policy concerning refugees applying from abroad and those applying for asylum or protection from within the US.
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Necessary Elements of an Asylum Claim: Alien must establish:
- That he/she has a well-founded fear of persecution
Well founded fear being the heart of asylum claims is subject to much legal contention. Some elements are:
- Well founded fear is a "reasonable" fear.
It has two elements: the subjective state of mind of the refugee and some objective reasons for such fear.
- The alien must possess a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort
- The persecutor is already aware, or could become aware that the alien posses this belief or characteristic
- The persecutor has the capability of punishing the alien
- The persecutor has the inclination to punish the alien
- The persecution must be inflicted by the established government or the established government refuses or is unable to offer protection from persecution by other groups
- That such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion
- That asylum should be granted in the exercise of discretion.
Even if an alien establishes a well-founded fear of persecution and is statutorily eligible, asylum may be denied in the exercise of discretion. In general asylum should be granted in the absence of adverse factors, but the alien should present evidence of any relevant factors which he/she believes would support the favorable exercise of discretion. One discretionary exclusion clause is the fraudulent attempt to circumvent the orderly process for lawful admission of refugees.
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The amount of evidence necessary to establish an asylum claim depends on the facts and circumstances of each individual Case. It is recognized that it is often very difficult for a refugee to document a persecution claim, so the alien's own credible testimony supported by general documentary evidence may be sufficient.
Some factors in Burden of Proof
- A person need not prove He/she is singled out for persecution if a pattern of persecution to ones similarly situated can be shown
- Journalistic accounts of persecution examples can help establish a claim
- A person can have a well-founded fear even if there is less than a 50% probability of persecution.
- Past persecution establishes eligibility without showing a likelihood of future persecution.
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- Applicant was firmly resettled in a third country before entering the US.
- Applicant has participated in the persecution of others on account of race nationality, membership in a particular group or political opinion.
- Applicant poses a danger to the security of the US
- Applicant has been convicted of a particularly serious crime (eg. aggravated felony) in the US.
- Applicant has been convicted of a serious (non political) crime (eg. aggravated felony) outside the US.
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An alien can apply for asylum either affirmatively by submitting an application for asylum before being apprehended and referred to formal deportation or exclusion proceedings, or the alien can apply for asylum as a defense against deportation or exclusion after being so apprehended. The affirmative applications are handled by the Immigration and Naturalization Service (INS) while the defensive applications are handled by the Executive Office of Immigration Review (EOIR).
Affirmative Application Locations
- Air or Sea Port
- Land Border
- Within the US
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If you are in the US and have a non legal immigration status(eg. you have entered without inspection or your status has expired) you may at some time be apprehended. Voluntary filing of asylum may possibly lead to deportation or exclusion proceedings, but there are many possible benefits to voluntary application. Get legal counsel.
- The INS may be more likely to wave or lower bond
- Non frivolous asylum applications require granting of work authorization until final determination
- Not applying may give appearance of purposely violating US immigration laws and may weigh against evaluation of credibility or exercise of discretion (see above)
- Applying may increase credibility and mitigate against discretionary exclusion.
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Rights of Asylum Applicants
In 1990 there was created a new corps of professional Asylum Officers located in seven asylum offices around the US. These Asylum Officers are trained in a non adversarial asylum processing and international law and relations. Additionally the CORAP is required to maintain a documentation center on international human rights conditions and provide public information on persecution. After receiving an asylum application the CORAP sets up a "non-adversarial" interview during the interview the applicant:
- represented by counsel or a representative
- have the right to make a statement on the evidence presented at the close of the interview.
- be given an additional 30 days to submit additional evidence.
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Documents:
- Form I-589 Request for Asylum in the United States (In quadruplicate)Great care should be taken in filling out this form
- Include a detailed affidavit of the Alien
- Include as much supporting documentation as applicable.
- G-325A Biographic Information Sheet
- FD248 Fingerprint Card
- There is no Filing fee
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Frequently Asked Questions about Asylum
We will make a concerted effort to answer questions of general interest about Asylum and collect them here. Please e-mail us your questions. Note that we will not be able to give specific individual advice. We recommend that you seek knowledgeable counsel about your situation. See Disclaimer
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Disclaimer: US immigration laws are very complex and have too many exceptions for this information service to be exhaustive. These information files are descriptions of the immigration processes intended to give an overview of the described processes. The information contained herein is not intended to create an attorney/client relationship or be construed as legal advise. Immigration law and procedures are constantly changing. And though we will try to keep these files up-to-date, we cannot guarantee their completeness or accuracy. Any reliance on information contained within the entire ImmLaw, Internet Immigration Law Center domain is taken at your own risk.
Please send reactions, comments, and advice to:
Mimi Schooley schooley@new-orleans.neosoft.com
This Page Last Updated:Thu, Dec 29, 1994