Publications

February, 2010

ASYLUM

For two centuries, America has been a haven for persons fleeing persecution, particularly in the last century from Nazis, Communists, Cubans, Vietnamese. A refugee is a person who is unable or unwilling to return to his/her country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or for political opinion. Usually a refugee must be outside his/her country. An asylee is a refugee who is physically present in the U.S. or is at a port of entry of the U.S. seeking asylum.

PERSECUTION

Persecution is a threat to the life or freedom or the infliction of suffering or harm for a person in a manner considered offensive. Permanent or serious injury is not essential. Persecution may be harsh but not necessarily life threatening. Threats or mistreatment may also rise to a level to be considered persecution.

Thus, severe interrogation techniques can be abusive; reeducation as was effected in Russia or Concentration Camps may be presumed to be persecution even though no physical harm was perpetrated in the camps. Rape or assault would be perceived to be persecution when related to political opinion or membership in a group or ethnicity. Forced medical examinations such as for those resisting population control has also been held to be persecution. Finally persecution could extend to emotional trauma or psychological as well as physical intimidation.

Harassment and discrimination alone would not be treated as persecution unless they rise to an aggravated level. Economic deprivation that is so severe that it amounts to a threat to life or freedom could be considered persecution. An assessment of individual circumstances needs to be weighed, as well as the cumulative effects of incidents considered as a totality may constitute persecution as well.

GOVERNMENTS UNABLE OR UNWILLING TO CONTROL PERSECUTION

A claimant has the burden of proof to show that his/her government is unable or unwilling to control organizations, groups or persons that are guilty of abuse. Proof does not require that the government or its agents refused to protect the claimant. It would be enough to show that the claimant reasonably believed it would have been futile or that the claimant would be subject to further abuse, if he/she made a complaint.

HUMANITARIAN ASYLUM

If the applicant cannot prove that he/she will face future persecution because of changed circumstances, still an applicant may obtain asylum that he/she would be unwilling to return because of severe past persecution. Compelling factors such as age, health and family factors may be considered for an asylum claim. Past persecution does not require corroboration; proof may be established solely through the credible testimony of the applicant.

WELL FOUNDED FEAR

A claimant may qualify for asylum without having suffered persecution in the past, by showing that a reasonable person in the circumstances would fear persecution and that he/she couldn’t relocate in the country because the person would be found out wherever he/she was in the country.

FIRM RESETTLEMENT

If the applicant had resettled in another country before coming to the U.S., the applicant

would be considered resettled in that country if the applicant received an offer of permanent resident status, citizenship or permanent resettlement there unless the applicant establishes that the stay in that country was necessary for flight from the applicant’s country and he/she remained there in that country only as long as necessary to make further flight arrangements and no ties were made in that country and that the country substantially restricted settlement there so that the applicant was not allowed to be permanently staying.

TIME LIMITS

Normally an applicant must file within one year of last arrival in the U.S. unless the

applicant can prove changed circumstances demonstrating the right to file later. These changed circumstances are those that materially affect the applicant’s eligibility for asylum. This changes in conditions in the country of the applicant’s nationality, changes in the applicant’s circumstances that affect his/her eligibility for asylum such as activities that occurred outside the applicant’s country that the applicant was involved in that would place the applicant at risk. Still the applicant needs to file the asylum application within a reasonable period given the changed circumstances.

Extraordinary circumstances may also extend the time limit such as for serious illness,

mental or physical disability, mental impairment, ineffective assistance of counsel, maintaining TPS status or for not having filed the application correctly and thereafter refiling within a reasonable time; or for death or serious illness of a close family member.

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New York Immigration Lawyers > Immigration Publications > February 2010