How to Win an Asylum Case

How to Win an Asylum Case

Genesis Law Firm, PLLC has immigration lawyers in both our Seattle and Everett, WA offices.  We handle asylum matters both in Immigration Court and with USCIS on a regular basis.  An individual may apply for asylum to the United States if s/he can demonstrate a well-founded fear of persecution based on one or more of the following: (1) political opinion; (2) religion; (3) race; (4) nationality; or (5) membership in a particular social group.  Generally, an application for asylum must be made within the first year of the individual’s stay in the U.S., although there are two exceptions to the one-year filing deadline.

EXCEPTIONS TO THE ONE-YEAR FILING DEADLINE
Generally, an applicant for affirmative asylum must file the application within one year of her arrival in the United States.  This is called the “one-year filing deadline.”  There are, however, two exceptions to this rule.

The two exceptions to the one-year filing deadline in asylum applications are as follows:

  • The applicant demonstrates either the existence of: (1) changed circumstances which materially affect the applicant’s eligibility for asylum or (2) extraordinary circumstances relating to the delay in filing the application within the one-year period.  The applicant must also demonstrate that she qualifies for this exception.

The meanings of “changed circumstances” and “extraordinary circumstances” are both statutorily defined and elaborated in case law.

MAKING AN APPLICATION FOR ASYLUM
An application for asylum may be made either inside or outside the U.S.  If inside the U.S., the application is made on Form I-589 and filed with USCIS.  An individual in removal proceedings may also apply for asylum-withholding of removal and/or relief under the Convention Against Torture (“CAT”) in front of the Immigration Judge.  If outside the U.S., an individual may apply for refugee status based on the same “fear of persecution” criteria.

MAKING THE CASE FOR ASYLUM
Importantly, asylum claims must be able to prove that the well-founded fear of persecution applies directly to the individual applicant, and not the applicant’s society in general.  For example, an applicant from Beirut, Lebanon will not qualify for asylum based on the sole fact that there was a recent bombing in Beirut.  If, however, it can be proved that the bombing was directed at the applicant because she is a member of a particular religious group and the group that targeted the applicant was either the government or a group that the government cannot or will not control, then the asylum application may be successful.

FIRM RESETTLEMENT
One is barred from receiving asylum (but not withholding of removal) if the applicant was “firmly resettled” in another country before arriving in the United States.

Firm Resettlement occurs when an asylum applicant, before arriving in the U.S., entered a third country and was offered citizenship or permanent residence by that country’s government.  For example, if Chengyang, a citizen of China, flees China and arrives in Thailand, where he is granted asylum and permanent residence, he will have “firmly resettled” in Thailand for purposes of being granted asylum in the U.S. later on.

If an asylum applicant can break the legal presumption of having firmly resettled if he establishes a number of requirements, such as that his travel to the third country was necessary in order to flee the persecution in his home country and that he stayed in the third county only as long as necessary to make further travel arrangements.

CONCLUSION
Making a case for asylum is no easy task.  It is not simply a matter of filling out the form and submitting it.  Asylum applications require careful attention to detail and evidence.  One key piece of evidence in almost every case is the Country Report of the applicant’s home country, issued by the U.S. Department of State each year.  Oftentimes the Country Report will corroborate the applicant’s claim that s/he would be persecuted in her home country.  Another key piece of evidence is a carefully drafted declaration from the applicant explaining in a logical, methodical way exactly why and how the persecution would happen making sure to hit on all of the statutory requirements for asylum.  There are many other ways to bolster an application for asylum, but each case is different and requires a careful analysis by a lawyer experienced in asylum.

Related Asylum Articles & Guides:

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