• Physical Presence –The applicant must be a person who is physically present in the United States or who is applying for admission, irrespective of his or her status.  Aliens in expedited removal, which applies to those apprehended at a Port of Entry or within 100 miles of the Mexican or Canadian border, may not be considered as aliens "within the U.S," and the application procedures for these people are different.
• Well Founded Fear of Persecution – An alien that is applying for Asylum must demonstrate that he or she has "well founded fear of persecution." Evidence of past persecution, although not required, will be prima facie evidence of well founded fear of future persecution. If there is no evidence of past persecution, the applicant must show that he or she has a credible fear of future persecution.
• Qualified Group – At least one basis for persecution must be based on race, religion, nationality, political opinion, or membership to a particular group.
• Unable To Return To The Country of Last Residence – The alien must not be able to return to the country of last residence because of past persecution or a well-founded fear of future persecution.
• Time Requirement – An applicant must apply for Asylum within one year of physical presence in the United States.  This requirement may be waived if the applicant can show changed circumstances that materially affect eligibility for asylum or extraordinary circumstances directly related to the failure to file within one year. These circumstances may include changes in country conditions or personal circumstances.
• Bars to Eligibility – A person may be barred from obtaining asylum based on the following reasons:
  • Failure to apply within 1-year of entering into the U.S. (but see exceptions to this bar, mentioned above);
  • The government’s showing that the alien may be safely removed to another country;
  • A previous denial of Asylum.  Waivers to this bar are available where the person can show changed circumstances. In addition, if the USCIS denied the asylum application, and the person is placed in removal proceedings, the person may apply for Asylum with the immigration judge;
  • The applicant’s previous participation in the persecutions of others in any way;
  • A prior conviction for a serious crime that indicates the applicant may be a danger to United States’ security or to its citizens.  The applicant’s commission of a serious crime may serve as a bar to asylum, but not prevent the applicant from obtaining withholding of removal and/or relief under the United Nation’s Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment.  In such cases, the applicant would not be eligible to become a permanent resident, but would be protected against removal to his or her home country;
  • The applicant’s prior participation in terrorist activity or removal from the United States based on terrorist activities.

Application Procedures

An asylum application may be filed with the USCIS or with the immigration court. An applicant residing inside the United States may file an asylum application with the USCIS.  If the application is granted, the asylee will be able to obtain permanent residency (Green Card Status). If the USCIS rejects the application, one of two things may happen, depending on the applicant's legal status. If the applicant is legally present in the United States, in a valid immigration status, the applicant may continue to maintain that status provided that the USCIS does not determine that the asylum application was fraudulent.  If the applicant is not in a valid status, the USCIS may refer the case to Immigration and Custom Enforcement (ICE) to file a "Notice to Appear" in immigration court for removal proceedings.

The applicant may file for asylum with the immigration court after placement in removal proceedings, even if an asylum application was previously denied by the USCIS. This second opportunity allows the applicant to again attempt to show that he or she is qualified for asylum status. If the Immigration Judge (IJ) grants asylum, the applicant may obtain a green card and become a permanent resident.  However, if the asylum application is denied, the applicant must file an appeal with the Board of Immigration Appeals (BIA) within 30 days from the date of the denial or face immediate removal from the United States. Within 90 days of the denial date, the applicant may also file a "Motion to Reopen" with the (BIA).

Asylum Application In Expedited Removal (At The POE)

If a person who is otherwise subject to expedited removal indicates a desire to apply for asylum, he or she will be interviewed by an asylum officer. The asylum officer must determine whether the alien has a "credible fear of persecution." If the asylum officer fails to find a fear of persecution, the person will be removed. There is limited administrative review of this type of decision. Any person who is able to demonstrate a credible fear of persecution will be detained or allowed parole into the U.S. (depending on whether the person will be a danger to the U.S. or its citizens) while his or her asylum application is being processed with the USCIS.

Asylum Approval

People with approved asylum applications have the following rights:

• The person may apply for adjustment of status 1 year later (the date of "residency" will be back dated to the date of the Asylum approval for Naturalization purposes);
• The person may obtain employment authorization during the 1-year period before eligibility for seeking permanent residence;
• The person may be granted advance parole to travel outside the United States;
• The asylee's spouse and children, if included in the asylum application and otherwise admissible, may be granted asylum; or
• If the spouse and children are outside the United States, the asylee may file Form I-730 to obtain a visa for them.

Application for Withholding of Removal

Under INA § 241(b)(3), the application for asylum is also an application for withholding of removal. The standard for considering whether a person qualifies for approval of an asylum application is different from the requirements for withholding of removal. To qualify for withholding of removal, the applicant must demonstrate that:

• The alien's "life or freedom would be threatened" on grounds of race, religion, nationality, political opinion, or membership in a particular social group; and
• There is a "clear probability" that the applicant will be persecuted if removed from the United States, a much higher standard than the standard to show a "well founded fear" under an asylum application;

If withholding of removal is granted, the Court must also consider the withholding of the person's family members; however, the alien will NOT be able to adjust and may only be able to obtain employment authorization.  Withholding of removal may be terminated if there is a change in the foreign country's conditions indicating the applicant will not be persecuted if returned; if it is later determined that the withholding of removal application was fraudulent; or if the alien commits one of the crimes that would have made him or her ineligible prior to the approval.

United Nations Convention Against Torture

A person may also apply under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in conjunction with the asylum application and the withholding of removal application. The person must "check a box" on top of the I-589 application in order for the Service or the Court to consider a CAT claim.

To qualify under CAT, an applicant must show that it is "more likely than not," or there is "substantial grounds to believe" that the applicant will be "tortured" upon being removed to the applicant’s home country. Torture is an act by which severe pain or suffering (physical or mental) is intentionally inflicted to obtain information or a confession, for punishment, for intimidation or coercion, or for another reason based on discrimination, and the act was inflicted by the government, or by others under the government's consent, or by a group that the government is unwilling or unable to control.

If a CAT claim is granted, the person will be granted either (1) Withholding of Removal or (2) Deferral of Removal.

Because the government has found that a high-level of fraudulently asylum applications have been filed, the USCIS and the Immigration Courts, as well as the BIA, tend to carefully scrutinize asylum applications. It is essential that an applicant consult with an experienced attorney in this area of immigration law. The immigration attorneys at Smith & Garg, PC have successfully argued many immigration applications. Smith & Garg immigration attorneys have the knowledge, experience, and confidence to help you in your immigration matters. Please feel free to give us a call at 562-590-7300 or to contact us at www.smithgarg.com to schedule a time for an office or telephonic consultation at your convenience.