Asylum & Refugee Representation

The term “persecution” is not defined by the Immigration and Nationality Act. Despite the general consensus surrounding the fact that persecution is marked by the extremity and the infliction of suffering or harm upon those who differs, it encompasses an extensive range of actions. For this reason, “persecution” is determined on a case-by-case basis and is fundamentally fact-dependent.

Actions that typically constitute persecution include:

• Genocide
• Slavery
• The extrajudicial killing of individuals
• Physical violence (some physical violence, especially when unrelated to a particular threat, may be insufficient to constitute persecution)
• Torture and other cruel and inhumane treatment
• Threats (vague, unspecified, anonymous threats may not amount to persecution) detention and/or confinement
  
• Substantial economic deprivation (mere economic deprivation alone does not rise to the level of persecution)
  
• Discrimination and harassment (when in combination with other harms, this may be sufficient to establish persecution)
  
• Persecution, by its very nature, possesses a subjective character and thus, whether a particular action or threat amounts to persecution will ultimately depend on the circumstances of each case
• What may constitute persecution in one case may not necessarily be deemed persecution in light of another application
  
• Notwithstanding the various forms persecution may take, in order for an applicant to be eligible for political asylum, the source of his or her persecution must be the government, or people or groups the government is unwilling or unable to control.

According to the INA, a political asylum applicant may qualify for political asylum either because he or she has suffered past persecution or because he or she possesses a well-founded fear of future persecution. 

In order to establish past persecution, a political asylum applicant must demonstrate that (1) the incident(s) rise to the level of persecution; (2) that the persecution is on account of race, religion, nationality, membership in a particular social group, or political opinion; and (3) is committed by the government or forces the government is either unable or unwilling to control.

Once past persecution has been demonstrated, fear of future persecution is presumed and the burden shifts to the government to show that there has been a fundamental change in circumstances, such that the political asylum applicant no longer has a well-founded fear of persecution or that he could avoid future persecution by relocating to a different part of his country.

A well-founded fear of future persecution may also be established by a political asylum applicant through evidence of being targeted for persecution on account of one or more of the five statutorily-protected grounds, familial ties, a pattern of persecution in his or her home country, or his or her membership in a disfavored group, and countrywide persecution.

It is important to note that in order to establish a well-founded fear of future persecution, a political asylum applicant need not demonstrate that it is more likely than not that persecution will occur should he or she return. Given the relevance of subjective factors to requests for asylum, it is arguable that a political asylum applicant merely demonstrate that his or fear is not imaginary and that an objective situation has been established with evidence or credible and persuasive testimony; that persecution is a reasonable possibility is enough to establish a well-founded fear of future persecution.

A foreign national can be barred from both applying for and receiving political asylum for particular actions. For instance, an individual may be barred from applying for asylum if he or she:

• Did not follow the one-year filing deadline, and did not file the Application for Asylum and Withholding of Removal within one year of his or her last arrival in the United States (or April 1, 1997–whichever is later)
• Had a previous asylum application denied
• Can be removed to a safe third country

A political asylum applicant may also be barred from a grant of political asylum if it is discovered that he or she:

• Participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
• Was convicted of a particularly serious crime, such that you pose a danger to the United States
• Committed a serious non-political crime outside the United States.

The Government may still consider a late Application for Asylum and Withholding of Removal if the political asylum applicant establishes that either changed circumstances or extraordinary circumstances fundamentally affected the political asylum applicant’s eligibility for asylum or brought about a delay in the filing of the application.

Examples of changed or extraordinary circumstances include the following:

• Changed condition in the political asylum applicant’s home country
• Applicable changes in U.S. law
• Recent changes in the political asylum applicant’s personal circumstances, such as engagement in political activism or conversion to a new and persecuted religion
• The political asylum applicant was a beneficiary in a previous immigration application and the qualifying relationship is terminated (e.g. the political asylum applicant and his or her spouse are no longer married, the political asylum applicant is estranged from his child, etc.)

To determine whether the reasons cited by the political asylum applicant for the delay in the filing of the application are justifiable, the court not only considers the reasoning, but takes into consideration the length of the delay in filing.

Ultimately, whether an application was submitted within a reasonable period of time is dependent upon whether or not the Government believes a reasonable person would have filed the application. To reach this determination, asylum officers take into consideration factors including the political asylum applicant’s level of education, the length of time for which the political asylum applicant was without legal counsel, the effects of persecution or illness on the applicant, at what point the political asylum applicant became aware of a change in circumstances, etc.

If your application for political asylum is denied, it can have long-lasting and sometimes devastating effect. Your case can be referred to court, which often means years of waiting, and an uncertain result. We understand this and want to help you. An experienced attorney can help you by making sure (1) you have a case that should be filed and has a chance to win, even before you file it, (2) prepare your application and affidavit that is required by law, (3) prepare you for the asylum interview (4) accompany you to the asylum hearing and (5) follow up if and when your case is delayed or when other issues come up.

Affirmative asylum: interview scheduling varies from 45 days to 4+ years depending on the asylum office backlog. Defensive asylum (in immigration court): typically 2-5+ years from Notice to Appear to final merits hearing. BIA appeal: 6-18 months after filing. Ninth Circuit petition for review: 1-3 years.

The Political Asylum Process:

Step 1: Arrive in the United States

• To apply for political asylum, an individual must physically be present in the United States, or be seeking entry into the country at a port of entry. At different times, we have seen different treatment of those seeking political asylum at the border. On occasion, these individuals have been told to return on a certain date for an interview, and in other occasions, they have alternatively been allowed to come into the country with a simple promise to show up at an interview, or held at a detention facility pending their political asylum hearing. The treatment and procedure seems to change from administration to administration and has seemingly been animated by the prevailing politics as well as the view on immigration and immigrants in general and refugees or political asylum seekers.

Step 2: File Application For Asylum And Withholding Of Removal

• The next step in the asylum process is to file the Application for Asylum and Withholding of Removal, with the accompanying documentation. Upon submitting his or her political asylum application, a political asylum applicant for political asylum will receive a date for fingerprinting from an Application Service Center of the United States Citizenship and Immigration Service (USCIS). This is known as biometric collection.
• Work Permits: As the law stands today, a political asylum applicant may file for a work permit or Employment Authorization Document (EAD) once his or her application has been filed for 150 days or more, and will receive this card once 180 days or more have passed since he filed for asylum.
• Asylum Processing Times: Once your application for political asylum has been filed, you must wait to be scheduled for an interview. This may take from as little as 45 days to as long as many years. Currently USCIS maintains a website which informs applicants as to the waiting time involved before their application for Asylum is heard by an asylum officer.

Step 3: Interview

• A political asylum applicant will then receive a letter requesting an interview at one of the eight political asylum offices or at a USCIS field office. A political asylum applicant must not only bring an attorney, but also his or her spouse and any children seeking derivative asylum benefits to the interview. If a political asylum applicant is not fluent in English, he or she must be accompanied by an interpreter.

Step 4: Decision Reached

•  Following an extensive interview, the political asylum officer will reach a determination on the application. The interview is meant to be non-adversarial, which means you can have an attorney present at the political asylum interview but the government is not represented by an attorney, and there is no judge involved. You can have your asylum lawyer present but he or she has a more limited, but still important role. You are also allowed to have an interpreter present, and are strongly advised to do so, because if you are unable to respond and answer to the questions put to you, the hearing will likely be cancelled and postponed until a later date, when you do have an interpreter. The questions in a political asylum hearing by-and-large revolve around your affidavit in support of your application for political asylum and the Application for Asylum and Withholding of Removal, as well as security related questions. After the hearing, you will be given a “push letter” which tells you to show up in 15 days for the answer to your political asylum application.

Approved Asylum Applications, Or Referral To Court

• If your case is approved, you are given documents that explain you can remain in the United States indefinitely and are able to apply for a green card once 1 year has passed after your approval date. On the other hand, if the application for political asylum is not approved at this level, the case will be referred to the immigration court for a new (de novo) hearing. 

Asylum Processing Times: Due to the surge of applicants starting in 2014, we saw a considerable slow-down in the processing of asylum applications.

Due to the sheer volume of political asylum applications and the availability of officers to conduct a political asylum hearing, there are different waiting periods before a case can be heard. USCIS has created a website which, with a certain degree of accuracy, shows how far behind the government is in conducting political asylum hearings. This site can be found at Affirmative Asylum Processing Bulletin https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/affirmative-asylum-interview-scheduling

Currently there are many offices across the country the conduct political asylum hearings. These are: Arlington, VA – Boston, MA – Chicago, IL – Houston, TX – Los Angeles, CA – Miami, FL – Newark, NJ – New Orleans, LA – San Francisco, CA.

As you can see, not every state has a political asylum office. This would mean that a political asylum applicant that does not live in one of the cities in the list must either travel to one such office for the interview or ZLA officers on detail would be sent to their city for an interview. This does not mean you can choose which office you will file your case with. The filing of the case must be done in accordance with your current address. To see which office has the jurisdiction to hear your case, please see the USCIS Asylum Office Locator page. https://egov.uscis.gov/office-locator/#/

As for how each office will handle the hearing, the various offices of the political asylum unit and their officers are trained to follow the same procedure and abide by asylum law in the same manner.

What Is A Political Asylum Hearing?

An application for political asylum becomes defensive when a political asylum applicant is placed in removal proceedings in immigration court, which may happen by one of three ways:

• An applicant is not granted political asylum by the officer in the political asylum hearing (though they may grant asylum, asylum officers lack the authority to deny an application outright) and the case is referred to an immigration judge, who may rule freely, as he is not bound to the USCIS’s decision.
• A political asylum applicant was either caught in the United States or at a U.S. port of entry without proper legal documents, or in violation of their immigration status.
• A political asylum applicant was caught trying to enter the United States without appropriate documentation, was placed in the expedited removal process, but was later found to have a credible fear of persecution by an asylum officer.

The Ins And Outs Of A Political Asylum Hearing

At the court hearing, the application initially submitted will be made a part of the record. The political asylum applicant can and is encouraged to testify at this hearing in support of his or her application. Due to the weight of the hearing, it is important that a political asylum applicant be prepared to testify honestly, clearly, and emotively, in order to best increase his or her chances of influencing the final outcome.

Experts, supporting witnesses, and friends and family who can attest to the political asylum applicant’s country conditions and establish likelihood of persecution may be called to testify. Moreover, if the situation in the political asylum applicant’s country of origin has changed substantially in the time between the interview and the hearing, such changes should be brought to the attention of the immigration judge.

The immigration judge will hear arguments from both the political asylum applicant and the U.S. government, represented by an attorney and, upon deliberation, will decide whether the individual is eligible for political asylum. If found eligible, the immigration judge will order political asylum to be granted. If found ineligible for political asylum, the immigration judge will determine whether the individual is eligible for any other forms of relief from removal; if not, the immigration judge will order the individual to be removed/deported from the United States

Appealing The Decision Of An Immigration Judge In A Political Asylum Case

If found ineligible for political asylum by an Immigration Judge, a political asylum applicant may appeal, requesting that a higher court review the lower court’s decision.

An immigration judge’s ruling is not final unless:

• A political asylum applicant waives or voluntarily “gives up” his or her right to appeal; or
• The time in which to file an appeal (30 days from the date of the ruling) has run out

Once a political asylum applicant has waived his or her right to appeal, the decision is final and cannot be changed. For this reason, a political asylum applicant should not make a decision on the spot, but should take the time to deliberate whether to embark on the appeals process. 

If a political asylum applicant determines that she would like to continue with immigration proceedings, she has two paths through which to appeal the decision of an immigration judge:

• Motion to Reopen: If new facts or evidence has been brought to light since the rendering of the ruling, which the immigration judge was not able to consider at the initial hearing, a political asylum applicant may file a Motion to Reopen.
• Motion to Reconsider: A Motion to Reconsider is filed in instances when (1) a political asylum applicant and his legal counsel believe that a mistake was made with the immigration judge’s ruling or (2) when a change in law could potentially void/undo the immigration judge’s decision. 

In either case, the appeal (which takes the form of a concisely-written and convincing brief) is sent to the Board of Immigration Appeals (“BIA”), the highest body for interpreting and applying immigration laws, whose decisions are binding on all DHS officers and immigration judges unless modified or overruled by the Attorney General or a federal court. 

Appealing The Decision Of The B.I.A. In Political Asylum Cases

In the event that an appeal is denied by the BIA, the political asylum applicant may send an appeal to the Federal Circuit Court that has jurisdiction over his or her particular case for review. With jurisdiction being determined geographically, the circuit court with jurisdiction of the American West is the 9th Circuit, located in San Francisco and tasked with reviewing appeals of 20% of the U.S. population.

The first step in appealing the decision of the BIA is to file a Petition for Review with the appropriate circuit court within 30 days of the BIA’s denial of the appeal/allocation of a “final order of removal.”

The next, and arguably the most important, step in the federal appeal process is to file a Motion for Stay of Removal. There is no automatic stay of removal when a political asylum applicant files a Notice of Appeal with a circuit court, meaning that he or she may still be deported before the appeal is reviewed by the court. Thus, it is imperative that a Motion for Stay of Removal be filed for the individual.

When determining whether to grant a Motion for Stay of Removal, the circuit court considers the following:

• Likelihood of success of the appeal
• Whether irreparable harm would occur if a Stay is not granted
• Whether the harm to the individual if not granted a stay outweighs the harm to the government if a Stay is granted
• Whether granting the Stay of Removal would serve the public interest

If a Motion for Stay of Removal is denied, the political asylum applicant risks being deported to his or her country, where he or she will have to wait while the appeal is being considered by the circuit court. Given the load of the circuit courts and, particularly, of the 9th Circuit, it is critical that a Stay of Removal be granted.

Related Practice Areas

• Deportation & Removal Defense
• U Visa
• VAWA Self-Petitions
• USCIS Affirmative Asylum
• USCIS Asylum Office locator
• Matter of A-B- (asylum precedent)

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