Introduction toRefugee & Asylum Law

by Marshall H. Hong, J.D.www.Hong-Immigration.com

www.ImmigrationInfoSite.com

This presentation is intended only as a brief introduction to Refugee and Asylum law concepts. Many of the issues discussed are overly complex, and due to space limitations, this presentation necessarily provides simplified or summarized explanations of these issues.

There may be exceptions to the general rules presented here, and changes to the law may have occurred since the time of writing this presentation.

If you have questions regarding your particular situation, you should consult with a qualified immigration attorney.

At the conclusion of this slideshow you will find contact information for the author – please feel free to contact the author if you have specific questions or would like additional information on this topic.

(Disclaimer)

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

What is Refugee & Asylum Law?

Under the Immigration and Nationality Act (“INA”), a “Refugee” is defined as:“any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and 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”

Definitions

An “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 in the U.S., at the time of applying for Asylum protection

Definitions

A Refugee is a person who is seeking protection in a country other than his home country, because he fears persecution in his home country.

Because of his fear of persecution, he is unable or unwilling to return to his home country.

He is also unwilling or unable to seek or obtain protection in his home country.

He must demonstrate a “well-founded fear of persecution”, based on his belonging to one of five classes of persons protected under Asylum law (see next slide) …

Now in Plain English

The five “protected classes” under Asylum law are: Race Religion Political Opinion Members of a Particular Social Group Nationality (National Origin)

Protected Classes

An Asylee is basically a person who qualifies as a Refugee – as defined above – but who is already in the U.S., or who is applying for entry into the U.S. (at a border or other point-of-entry), at the same time as he is requesting protection from persecution in his home country.

Now in Plain English

In other words, in order to receive Asylum protection in the U.S., an Applicant must demonstrate 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”

Elements of Asylum Claim

Persecution is a threat to life or freedom, or the infliction of suffering or harm . . . in a way regarded as offensive

Persecution can include arbitrary arrest and detention, torture, physical abuse, death threats, or actual killing

Persecution can also include being deprived of food, shelter, employment, or other life essentials

What is “Persecution”?

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

What is a “Well-Founded Fear”?

Even if the Applicant proves that he has been the victim of actual past persecution, the Department of Homeland Security (“DHS”) can “rebut” the presumption of a “well-founded fear” of future persecution, if it can demonstrate a “fundamental change in circumstances” (changed country conditions) in the Applicant’s home country.

In other words, a showing of past persecution will NOT be sufficient to demonstrate a “well-founded fear” of future persecution, if it is shown that changed country conditions make future persecution unlikely

Fundamental Change in Circumstances

Where the Applicant proves that he was persecuted in the past by the government, it is presumed that he also has a “well-founded fear” of future persecution

However, 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 persecute Applicant 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 be presumed

(the end of a war or other conflict is another example of a “changed country condition” that can rebut the “well-founded fear” presumption)

Example of Changed Country Conditions

Not all threats of harm or persecution will qualify an Applicant for Asylum protection – the feared persecution must be on account of the Applicant’s: Race Religion Political Opinion Membership in a Particular Social Group, or Nationality

Must be a Member of One of the Protected Classes

While the concepts of race, religion, and nationality are self-explanatory, the “political opinion” and “particular social group” classes require further discussion:

More on Protected Classes

Political Opinion can include Imputed Political Opinion. This means that the Applicant fears persecution based on a political opinion that he may not in fact hold, but one that his persecutor believes him to hold – for example, an individual believed to be a member of a rebel group, even when not true. If the persecutor acts on the belief that the Applicant holds a certain political opinion, which the Applicant in fact does not hold, then the Applicant may be entitled to Asylum protection based on imputed political opinion.

Political Opinion

Members of a “Particular Social Group” can be defined as those individuals who have a “common immutable characteristic”, such as sex, color, family ties, or in some cases a shared past experience or background

The characteristic must be one that the group members “cannot change, or should not be required to change because it is fundamental to their individual identities or consciences”

Membership in the group must be visible or “perceivable” to other members of society – the group members must be readily identifiable as members of that group

Particular Social Group

The Applicant must demonstrate that the persecution that he fears in his home country would be inflicted by the government of that country, or by some group or entity from which the government cannot or will not protect the Applicant

Persecution at the Hands of the Government

The Asylum Applicant must demonstrate that he is unable or unwilling to return to any place in his home country. It is generally not sufficient to demonstrate that he is afraid only to return to a particular part of his country.

In other words, if the Applicant could reasonably relocate to another part of his home country and thereby escape persecution, he will not be entitled to Asylum protection in the U.S.

Fear must be “Country-Wide”

In addition to proving ALL of the above-listed elements of an Asylum claim, an Applicant must also demonstrate eligibility. The following factors will make an Applicant ineligible for Asylum protection 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

Other Eligibility Requirements

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)

Eligibility and Bars to Eligibility

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)

Affirmative vs. Defensive Asylum

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

Related Requests for Protection from Harm

For more information on Refugee and Asylum Law, and related issues such as Relief from Removal and Temporary Protected Status, please look for articles, videos, slideshows, and other materials at:

www.ImmigrationInfoSite.com

Thank you!!

More on Refugees, Asylees, and other Immigration Law Issues

For More Information, visit us at:

www.ImmigrationInfoSite.comwww.Hong-Immigration.com

or contact Marshall Hong by email at:

Marshall@Hong-Immigration.com