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At Pelton + Balducci, we have successfully handled many asylum cases before the Executive Office for Immigration Review (EOIR; Immigration Court), USCIS, and the Board of Immigration Appeals (BIA). We are fortunate to have a former Asylum Officer on staff, which lends a unique and powerful perspective to the preparation of an asylum claim. Asylum is a constantly changing area of the law that requires ongoing research and study. We work diligently to stay abreast of all relevant developments to timely analyze how they will impact each applicant. We have had the privilege to represent asylum seekers from all over the world, including individuals from Honduras, El Salvador, Guatemala, Mexico, Nicaragua, Venezuela, Peru, Turkey, Uzbekistan, Cameroon, Saudi Arabia, The Democratic Republic of the Congo, Gabon, Bangladesh, and Syria. We have also represented many children and members of the LGBTQI community.
To qualify for asylum, an applicant must show that they meet the definition of a refugee, which is set forth in section 101(a)(42) of the Immigration and Nationality Act (INA), and is as follows:
[A]ny 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.
This form of relief is only available to individuals who are already inside the United States. The form I-589, Application for Asylum must be filed within the first year of the applicant’s entry to the United States, however, there are significant exceptions available to this rule known as the “one year filing deadline.” There are myriad ways to meet the definition of a refugee, but an applicant must show that they have either suffered past persecution on account of a protected characteristic and/or that they have a well-founded fear of persecution on account of a protected characteristic. Race, religion, nationality, political opinion and membership in a particular social group are the five protected characteristics that may form the basis for an asylum claim. The particular social group category is an area of the law that varies by the circuit court jurisdiction in which the application is adjudicated and is constantly in flux. We have won many cases based on particular social group arguments, including claims regarding family membership, domestic violence, abuse of children, sexual minority status, witnesses, and others.
In addition to proving that the past harm suffered “rises to the level of persecution,” a successful applicant will also show that this harm was on account of their protected characteristic, i.e. the reason for their persecution. This is often one of the most challenging elements of the claim to satisfy, and frequently relies on the credible testimony of the applicant alone, as most individuals fleeing their country do not have the luxury of gathering documents, photographs or other evidence. Credibility itself is a crucial threshold issue in asylum cases, often imperiled by an applicant’s inability to recall specific dates or details, due to the significant trauma they have suffered. Because of this, psychological and forensic evaluations can be key in documenting not only the past harm, but the ways in which the applicant’s memory may have been affected by their past persecution.
Even if an applicant succeeds in proving that they have suffered past persecution on account of a protected characteristic, they must then show that they have a well-founded fear of persecution in the future, i.e. they are still in danger if they were to return to their country. If the applicant has shown past persecution, they will benefit from a presumption of well-founded fear. However, this presumption may be rebutted if it can be shown that the applicant could relocate internally within their country to avoid future harm, or that the endangering circumstances have changed or no longer exist.
There are two venues in which a claim for asylum may be presented: with USCIS or before the Immigration Judge in Immigration Court. In either scenario, an asylum seeker is eligible to apply for work authorization 150 days after the filing of their application for asylum. If an individual is in status and not yet in removal proceedings, they are eligible to file their I-589 Application for Asylum with U.S. Citizenship and Immigration Services (USCIS). This is preferable, as the USCIS interview is meant to be a non-adversarial process. Children classified as Unaccompanied Alien Children (UAC), are eligible to file their applications for asylum with USCIS, despite being in removal proceedings. Once the application is received, the applicant will receive an appointment for “biometrics.” During this appointment, they will be photographed and their fingerprints will be taken. The next step is the interview, which will take place at the Asylum Office in Metairie, Louisiana for applicants who live in the Greater New Orleans Area.
During the interview, the applicant is allowed to be represented by counsel. In addition to the applicant, their attorney, and the asylum officer, there will also be an interpreter present in the room (if needed). The asylum interview is conducted in three parts. First, the officer will review the I-589 form with the applicant to verify all of their biographic, address, and employment information. Second, the officer will elicit testimony from the applicant regarding their fear of returning to their home country, and past events relating to that fear. Lastly, the officer will discuss with the applicant the next steps in the process, i.e. how they will receive their decision, either by mail or in person.
If an asylum seeker is not eligible to file their application for asylum with USCIS, their case will be heard by the Executive Office for Immigration Review (EOIR) Immigration Court. This type of application is known as defensive asylum because it is being raised as a defense against the individual’s removal proceedings. In the Immigration Court context, individuals are referred to as “respondents.” The same laws and regulations described above apply to asylum applications in court, with regard to the legal elements of the claim that must be proven. However, an important distinction is that the courtroom process is adversarial in nature. This means that the respondent must present their case in front of an Immigration Judge (IJ), and be subject to cross examination by an attorney from the U.S. Immigration and Customs Enforcement (ICE) Office of Chief Counsel (OCC). The respondent will also be subject to questioning by the IJ.
If asylum is granted by USCIS or EOIR, the individual will have status as an asylee for one year, at which time they will be able to apply for adjustment of status to become a lawful permanent resident (LPR). It is imperative that an individual granted asylum, known as an asylee, does not return to their country of origin, as this could lead to revocation of their asylum. A grant of asylum to an individual in removal proceedings will also entitle them to terminate their removal proceedings. Winning a claim for asylum can be life-changing not only for the applicant, but for their family members who qualify as derivatives, such as their children and spouse (if they are in the U.S.). It is also possible to include family members as derivatives such as a spouse or unmarried children under the age of 21, and after the grant of asylum they become eligible for many other benefits as well.
At P+B, we can help our clients navigate through the challenges of the asylum process by utilizing our combined 30 years of field experience to passionately and meticulously advocate on their behalf. Our team is fluent in both English and Spanish, and we can work with translators as needed. Call (504) 708-5400 today to schedule a consultation.