Asylum is available to an alien who is physically present in the United States, or at a land border or port of entry, and is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of, the protection of their country of nationality, 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.
To be successful on an asylum claim, the alien must prove: 1) that he or she has a well-founded fear of persecution or has suffered past persecution; 2) that such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion; and 3) that asylum should be granted in the exercise of discretion. “Well-founded fear of persecution” means a “reasonable” fear of persecution.
In order to prove a well-founded fear of persecution, the alien must show: 1) that he or she possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; 2) the persecutor is already aware, or could become aware, that he or she possesses this belief or characteristic; 3) the persecutor has the capability of punishing the alien; and 4) the persecutor has the inclination to punish the alien.
The Immigration Act of 1996 makes some significant changes in the asylum process. The most important change states that a person seeking to file for asylum must do so within one year of arriving in the United States. In addition, those in the United States, prior to April 1, 1997, must file their applications before April 1, 1998. The only exception to filing late is if the alien can show changed circumstances in the alien’s country which materially affect the applicant’s eligibility for asylum, or that the alien was unable to timely file because of extraordinary circumstances.
There are two ways in which an alien may apply for asylum. The first is known as an affirmative application. In this manner, the alien files his or her application directly with the immigration asylum unit, prior to their being placed in removal proceedings. The applicant will be interviewed on the asylum application, and may be accompanied by an immigration attorney.
The application is filed, in triplicate, on immigration form I-589, together with two photographs for each applicant fourteen years and older. Currently there is no fee to file an asylum application. You should attach to the application documentation to support your case. This can include affidavits, news articles, country reports, and other proof of persecution. An asylum officer can adjudicate an asylum application in one of two ways: (1) the application may be approved. If the application is approved, the applicant who is now called an asylee may apply for adjustment of status to permanent residence one year after obtaining asylum status. In addition, the asylee’s spouse and children, if included in the asylum application, and otherwise admissible, may also be granted asylum. If the spouse and children are outside the US, the asylee must file immigration form I-730 with the appropriate service center. When approved, it will be sent to the consulate abroad where the spouse and children can receive refugee visas.
In addition to an affirmative asylum application, an alien may file an application once they have been placed in removal proceedings. A hearing on the application will be held before an immigration judge. The judge may request an advisory opinion from the State Department if he or she feels that it will assist him or her in reaching a decision in the case. As in any other case, the applicant should be prepared to present whatever evidence he or she has in support of the application.
If the immigration judge grants the application, the asylee is then able to file for adjustment one year later. If the application is denied the alien may file an appeal to the Board of Immigration Appeals.
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