The United States (U.S.) Immigration and Naturalization Act (INA) contains provisions that allow aliens present in the U.S. to apply for asylum and obtain certain immigration benefits. First, an asylum applicant must show that he/she qualifies for refugee status. INA defines a refugee as “any person who is outside any country of such person’s nationality or …any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country 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 other words, the alien must prove that he/she is being persecuted in his/her country on account of any of the five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. Proving persecution is not easy. The alien must show sufficient evidence proving that he/she was singled out as the subject of that persecution. When proving the status as refugee, in addition to documentary evidence, the alien must be credible. Credibility is a big factor in any asylum case. The asylum officer or immigration judge will assess the documentary evidence the alien presents in light of the alien’s credibility.
The petition for asylum starts when the alien files and application for asylum in a designated form and attaches the evidence to prove that he/she qualifies as a refugee. This petition must be filed within one year after the alien’s arrival in the U.S. Applications for asylum filed after the first year of the alien’s arrival are automatically referred to an immigration judge to determine if there are extraordinary circumstances that precluded the alien from filing on time. The Immigration and Naturalization Services (CIS), Asylum office, will call the alien for an asylum interview. At this interview, the asylum officer will ask about the persecution the alien suffered in his/her country and the evidence submitted. The asylum officer may grant, deny, or refer the petition to an immigration judge. If the petition is referred to an immigration judge, removal proceedings against that alien commence. This means, if the immigration judge denies the asylum application, the immigration judge will issue a removal order (deportation order as it is popularly known).
The alien is entitled to work authorization document 180 days after filing his/her asylum application. Yet, this does not mean that the alien’s application for asylum will be approved. Still, the alien may be ordered removed if the immigration judge denies the asylum application. Aliens should seek the advice of an immigration attorney who will help assess the odds of the alien’s case. Aliens must know that filing and asylum application, if denied, may conduce to the alien’s deportation. If the immigration judge denies the alien’s application for asylum and orders the alien removed, the alien may appeal before the Board of Immigration Appeals (BIA) within 30 days after the immigration judge’s decision.
Attorney Martha L. Arias can represent asylum applicants before the immigration court and the BIA, if the applicant is filing an appeal. Attorney Martha L. Arias has represented many clients before the Immigration Judge and the BIA. Some of these clients have already obtained their lawful permanent resident status.