Asylum is no laughing matter -- Atty. Mike Templo
By ATTY. MIKE TEMPLO | 10/31/2008 8:29 PM
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Asylum is defined as “protection of usually political refugees from arrest by a foreign jurisdiction”, according to Black’s Law Dictionary. In the United States, a person, who is a non-U.S. citizen, can apply for asylum if he or she enters the United States, regardless of their U.S. immigration status, and is unable or unwilling to return to their country of nationality or last habitual residence.
Under U.S. law, the grounds for granting asylum are past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Procedurally, to apply for asylum, you will need to fill out Form I-589 Application for Asylum and for Withholding of Removal.
Normally, asylum processing is completed within 180 days from the date of filing your application.
If you notice the name of the form, there are two components of an asylum claim, which are straight asylum and withholding of removal. The differences between the two are the standard of eligibility and relief that can be afforded.
In a straight asylum claim, the applicant must be able to prove a “well-founded” fear of future persecution. This is a subjective standard which, if asylum is granted, the applicant cannot be deported anywhere outside the United States. In addition, the applicant can apply for legal permanent residence after one year of being in refugee status.
In a withholding of removal claim pursuant to INA 241(b)(3), the applicant must be able to prove a clear probability of persecution. This higher, stricter standard is based on more objective considerations. This claim is country-specific, meaning that if the withholding of removal is denied, then the applicant can be deported or removed to a third country.
It must be noted that unlike in a straight asylum case, the applicant in a withholding of removal case cannot apply for legal permanent residence at any time.
Procedurally, there are two ways to apply for asylum.
The first is to seek asylum at a U.S. port-of-entry i.e. airport, seaport, border crossing. You will be made to appear before an Immigration Judge (IJ) if you are under removal (deportation) proceedings, who may grant the application or may issue a denial and an order of deportation.
The second is to file an asylum application within one (1) year of your arrival in the United States.
In certain circumstances, the time period for filing may be disregarded if conditions in your country of nationality or last habitual residence have changed or if your personal circumstances have changed within the past year prior to the application, and those changes of circumstances affected your eligibility for asylum.
Furthermore, you may ask for asylum later than one year if extraordinary circumstances prevented you from filing within the prescribed period, so long as the application is made within a reasonable time given those circumstances.
Within sixty (60) days of filing the asylum application, an interview is conducted by an Asylum Officer (AO) who determines the applicant’s eligibility for asylum. The AO may grant the application or refer the case to an Immigration Judge for a final decision.
If after the interview, the Asylum Officer finds you are not eligible for asylum and you are in the U.S. illegally, you will be placed in removal proceedings and your application will be referred to an Immigration judge for final decision on removal.
However, if after the interview, the Asylum Officer finds you are not eligible for asylum but you are in the U.S. in a valid immigrant or nonimmigrant status, the Asylum Officer will send you a notice explaining their intention to deny your request for asylum. An opportunity will be given to you to respond to that notice before a decision is made on your application.
When considering an application for asylum, an applicant must be aware that their assertions of persecution, witness testimony and documentary evidence, are assessed by Asylum Officers and Immigration Judges with objective information about the country where the alleged persecution originates.
These AOs and IJs are well informed and trained in socio-political and socio-economic conditions of foreign countries and internationally-recognized human rights. In addition, the U.S. Department of State may provide information relevant to an applicant’s eligibility.
Atty. Michael Templo is an attorney admitted to practice law in New York State and Federal Courts and is a partner at Templo & Templo with offices in New York, USA and Makati City, Philippines. Atty. Templo specializes in U.S. Immigration matters. The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional. For your comments and questions, Atty. Templo can be reached at mdt@templolaw.com or log on to www.templolaw.com.
