Unpacking Asylum: Not Every Type Of Harm Is Protected
To qualify for asylum, applicants must demonstrate a well-founded fear of persecution in the event they are forced to return to their country. The applicant must further demonstrate that the persecution they fear is on account of either race, religion, nationality, political opinion or membership in a particular social group.[1] Moreover, the persecution they fear must be at the hands of the government or someone the government is unwilling or unable to control.[2] To qualify for asylum, you must file your application within a year of your last entry to the United States.[3] A year after having been granted asylum, applicants are eligible to adjust their status to that of a lawful permanent resident.[4]
Given the definition set forth above, there are several things to keep in mind in regards to asylum claims:
- The fact that there is a lot of violence in one’s country does not by itself qualify one for asylum. The law does not protect every type of fear that one may have of returning to one’s native country. Again, the fear of harm must be “on account of” one of the specified grounds set forth in the statute, such as race, religion, nationality, political opinion or membership in a particular social group.[5] Generalized conditions of violence will not suffice.
- The harm must rise to the level of persecution. Persecution generally does not mean discrimination, economic or emotional hardship. So the fact that you have no family in your native country, would have a hard time finding a job, and would miss your family here in the U.S. if deported (while relevant for some other immigration forms of relief) will not qualify you for asylum.
- The harm feared must be at the hands of the government or someone the government is unwilling or unable to control. Fear of harm related to private actors is not sufficient unless you can show that the government is unwilling or unable to protect you from private individuals.
- A showing of past persecution establishes a rebuttable presumption that an asylum applicant has a well-founded fear of future persecution. Upon a showing of past persecution, the burden shifts to the government to demonstrate that conditions in the applicant’s country have changed to such an extent that the fear of persecution is no longer well founded.[6] Therefore, it is crucial that applicants who have suffered harm in their countries prior to arriving in the U.S. submit as much corroborating evidence as possible.
- Even if you do not qualify for asylum, other related forms of protection might be available depending on the facts of your case. For example, relief under the Convention Against Torture – which requires an applicant to demonstrate that it is more likely than not that he or she will be tortured by or with the acquiescence of the government if deported – does not require the applicant to demonstrate that such torture is on account of a specified ground.[7] The fear of torture can be on account of any reason so long as it would be carried out by or with the acquiescence of the government. However, protection under the Torture Convention (unlike asylum) does not lead to lawful permanent resident status; rather applicants granted this form of protection are permitted to remain in the U.S. and work, so long as the conditions in their countries giving rise to torture remain the same.
- You should consult a licensed attorney before deciding whether or not to apply, especially if you are not in removal proceedings as the filing of an asylum application with the Department of Homeland Security always carries the risk that the application will be referred to an Immigration Judge. An experienced immigration attorney can assess your chances of qualifying for asylum, assist you with the preparation of the application and supporting evidence, and represent you at the asylum interview (or court hearing). Further, like immigration law in general, asylum is a very intricate and constantly evolving area of practice. Applicants who fear returning to their countries because of reasons unrelated to political opinion, race, religion or nationality often attempt to qualify by asserting that they are members of a “particular social group” as defined under immigration law. The law in regards to the definition of “particular social group” is a heavily litigated area of immigration law and a thorough discussion of this aspect of asylum is well beyond the scope of this article. But generally, to qualify for asylum based on membership in a particular social group, an applicant must demonstrate (in addition to all the other statutory requirements) that the group is (1) defined by an immutable characteristic (i.e. one a person “cannot change, or should not be required to change.[8]”); (2) is socially distinct (in that the society in question actually perceives the social group as such) and (3) sufficiently particular (in that the group’s boundaries can be delimited and verified by the society in question).[9] As you can imagine, crafting a successful asylum claim requires a substantial amount of research and preparation. If you fear returning to your country because you might be subjected to persecution or torture, call our office now and so we can educate you about this process and help you make an informed decision as to how to proceed with your claim.
PLEASE NOTE: The information contained in this article is not intended to constitute legal advice for any individual case or situation. This information is general and should not be relied on for any specific case. In order to obtain advice concerning your specific situation, contact an experienced immigration attorney for a personal consultation.
[1] INA §§101(a)(42)(A). Madrigal v. Holder, 716 F.3d 499, 506-07 (9th Cir. 2013).
[2] See id.
[3] INA §208(a)(2)(B), (D).
[4] INA §209.
[5] See INS v. Elias-Zacarias, 502 U.S. 478 (1992).
[6] 8 C.F.R. §208.13(b)(1)(i)(A).
[7] See 8 C.F.R. §§208.16 to 208.18.
[8] Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985).
[9] See Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).
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