Asylum and Refugee Status

1. Refugee

The Immigration Nationality Act establishes a procedure for applying for asylum in the United States. A person is eligible for a discretionary grant of asylum if he or she has suffered past persecution or has a “well-founded fear of persecution” on account of race, religion, nationality, membership in a particular social group or political opinion.

2. Asylum

1) Standard for asylum

a) Definition of persecution

Persecution encompasses a broad range of acts. It includes the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim. Serious violations of basic human rights constitute persecution.

b) Country-wide threat

The Board of Immigration Appeals (BIA or Board) requires that an applicant show that the risk of persecution exists country-wide unless it would be unreasonable to relocate to another part of the country. The Ninth Circuit has held, however, that country-wide danger exists in any case in which that persecutor is a government agent.

c) Past Persecution

Upon a showing of past persecution, a person has met the definition of a “refugee” and is eligible for a discretionary grant of asylum. Once a showing of past persecution establishes eligibility for asylum, a showing of a well-founded fear of future persecution is relevant to the exercise of discretion to grant asylum under the asylum regulations.

d) Well-founded fear of persecution

If a person has not suffered past persecution, he or she is still eligible for asylum based on a fear of future persecution. A person must have a subjectively genuine fear and the fear must be objectively reasonable. This means that a person must express a subjective fear for returning. Documentation and expert testimony on conditions ion the country, including human rights violations and harm to people similarly situated to the applicant, are essential to thus showing.

2) Asylum process

a) One –year filing deadline

An asylum seeker must file an application for asylum within one year of arrival in the U.S. There are only two limited exceptions to this rule:

(i)“changed circumstances which materially affect” an applicant’s eligibility for asylum; and

(ii)“extraordinary circumstances relating to the delay in filing an application with the period specified.”

b) Filing with INS and Immigration Court

A person allowed to apply for asylum has two possible ways to do so:

(i) with an INS asylum officer; and

(ii) with an immigration judge.