Asylum

What is Asylum?

Asylum is a form of relief available to refugees who are physically present in the United States, who have left their home countries, and have suffered persecution or have a fear of future persecution in their home countries. A “refugee” is a person who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, his country of origin because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

In general, a person who is physically present may apply for asylum in accordance with [INA §208]; 8 U.S.C. § 1158(a)(1).

To be eligible for asylum, a person must demonstrate that she is unable or unwilling to return to her home country because of:
1. Past persecution or a well-founded fear of future persecution;
2. On account of race, religion, nationality, membership in a particular social group, or political opinion;
3. Which the government is unable or unwilling to control.

Having satisfied all three elements, the government can attempt to rebut the presumptions by showing:
1. There have been substantial changes in country conditions that the threat of persecution no longer exists;
2. Reasonable relocation within the country is a reasonable and variable option;
3. The applicant has returned to her home country and no longer fear persecution once having suffered.

Applications for asylum must be filed within one (1) year of entry into the United States.
An Unaccompanied Alien Child (“UAC”) has a specified exception to the one year filing deadline allowing him to continue to be eligible for asylum even after the deadline has passed. If an applicant is granted asylum, she will automatically receive work authorization. She can petition for her spouse and unmarried children under the age of 21 to be granted derivative asylee status. Additionally, as an asylee, she may apply for a Social Security number and be eligible to apply for Medicaid and public assistance. After one year, she will be eligible to file an Application for Adjustment of Status to become a Lawful Permanent Resident. After five years as a lawful permanent resident, she will be eligible to naturalize to become a U.S. citizen.

ASYLUM RESOURCES:

CLE on Working With Experts on Country Conditions in Asylum Cases for Juveniles, June 7, 2016

Link to dropbox of materials from training on working with experts for asylum claims, June 2016

Video for training: http://nyls.mediasite.com/mediasite/Play/b32af16704994ecea4e779eabe0d07bb1d?catalog=12399358-19be-42b8-9fdf-e24cf6c44d32

Powerpoint Resources from December 1, 2015 Best Practices in Representing Children Before the Asylum Office Training

“Preparing Asylum Claims for Young People” – by Claire R. Thomas

“Identifying Nexus in Asylum Claims for Immigrant Youth” – Heather Yvonne Axford of CALA

CLE on Best Practices in Representing Minors Before the Asylum Office, February 20, 2014

Download the materials

Basic Resources

USCIS page on unaccompanied minors (see, in particular, the AOBTC Lesson Plan and Children’s Guidelines, each of which may deserve a link of their own): http://www.uscis.gov/humanitarian/refugees-asylum/asylum/minor-children-applying-asylum-themselves

USCIS, I-589 and instructions: http://www.uscis.gov/i-589

USCIS, The Affirmative Asylum Procedures Manual (see Section III.B.1 on Children Filing as Principal Asylum Applicants): (AAPM): http://www.uscis.gov/sites/default/files/files/nativedocuments/Asylum_Procedures_Manual_2013.pdf 

 

EOIR, The Immigration Court Practice Manual: http://www.justice.gov/eoir/vll/OCIJPracManual/ocij_page1.htm

 

Relevant Recent Case Law

Matter of ARCG: http://www.justice.gov/eoir/vll/intdec/vol26/3811.pdf

Matter of MEVG: http://www.justice.gov/eoir/vll/intdec/vol26/3795.pdf

Matter of WGR: http://www.justice.gov/eoir/vll/intdec/vol26/3794.pdf

Helpful Links and Practice Guides

 

CGRS Litigation Support Materials: http://cgrs.uchastings.edu/search-materials/cgrs-litigation-support-materials

Public Counsel’s Asylum Manual: http://www.publiccounsel.org/tools/publications/files/AsylumManual.pdf

Refworld: http://www.refworld.org/

BIA Remanded Case to IJ to Conduct a Full Hearing, Decided June 12, 2014

The BIA concluded that in the ordinary course of removal proceedings, an applicant for asylum is entitled to a merits hearing, without first having to establish prima facie eligibility. (Followed Matter of Fefe, 20 I&N Dec. 116 (BIA 1989))

See Decision: Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014)

UNHCR Report “Children on the Run,” Published March 2014:

A study conducted by the United Nations High Commissioner for Refugee Regional Office for the United States and the Caribbean.

Click to view Report: “Children on the Run”

 

Unaccompanied Alien Child (UAC) Asylum Policy as of June 2013:

Memorandum from Ted Kim, Acting Chief, Asylum Division, U.S. Citizenship and Immigration Service

UAC asylum policy.USCIS.Kim memo.6.04.13

US Treasury designation of MS-13 gang as a  transnational criminal group

Click to view Article:
US Treasury designation of MS-13

Asylum Granted to Honduran man threathened by Mara 18.

Immigration Judge Videla granted asylum to a young Honduran man whose father was murdered and who was also threatened by the Mara 18.

 

See Decision Below:
S-G-C- Dec_Redacted[1]

Asylum Granted to granted to Guatemalan who, as a fare collector, refused to pay his “renta” to the Mara 18.

Judge Chew wrote a great decision granting asylum to a young Guatemalan who, as a fare collector, refused to pay his “renta” to the Mara 18.  The Judge found that the Respondent’s consistent refusal to make these obligatory payments telegraphed an anti-gang political opinion and that he was persecuted based on that anti-gang opinion.

See Decision Below:
IJ Grant O-L-G-[1]

En Banc CA9 on ‘Social Visibility’ – Henriquez-Rivas v. Holder 

Click to View Article:
Henriquez-Rivas v. Holder – “Social Visibility”

 

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