Publications

OCTOBER 2009

ASYLUM WAIVER APPLICATION

A member of a disfavored group that is persecuted within the country of an applicant may be eligible for withholding of deportation even if he/she has not been a victim. One may qualify by showing one may be subjected to persecution by a “pattern or practice” against a group that the applicant belongs to. Historical examples of persecution on account of race or religion may be shown by reference to the treatment of the group in the applicant’s country and if the applicant applies for refugee status, an immigration officer may infer a reasonable belief that the applicant would suffer a similar fate.

TIMELINESS OF ASYLUM APPLICATIONS

The Immigration law requires that an asylum application be filed within one year of arrival; otherwise, the applicant is relegated to withholding of deportation, or the Convention Against Torture. These remedies are more difficult to prove and make it considerably harder to obtain permanent residence. The Federal Court in New York would not extend the one year rule for filing for asylum even if an applicant arrived within a year based on a trip abroad of short duration when the applicant had arrived and stayed more than a year before without applying for asylum.

UNACCOMPANIED CHILDREN IN ASYLUM PROCEEDINGS

The Board of Immigration Appeals in March 2009 decided that unaccompanied children

who have requested asylum will not be examined and adjudicated by the Immigration Service in an adversarial setting. The Service heretofore has permitted interrogation of minors in a threatening and coercive manner and the Board has ruled that this practice must cease.

ASYLUM RECENT DEVELOPMENTS

The Supreme Court of the United States recently granted a Judicial Stay of Deportation reversing the Attorney General who had denied a Motion to Reopen because the applicant failed to prove that the Immigration was wrong as a matter of law. The Supreme Court held that the Courts could review issues of fact as well as of law; for a Stay the Courts need to ascertain that an alien (a) is likely to succeed on the merits, and (b) that the applicant will be irreparably injured without a stay, and (c) the stay will not injure other parties interested in the proceeding and (d) the public interest. This decision favors asylum applicants who fear being deported to their own countries where death or serious harm could occur.

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New York Immigration Lawyers > Immigration Publications > October 2009