When All Else Fails… File For Asylum?

By Bethany McAllister, Esq.

This article has been amended:

In Volume 8 Issue 46 the attorney Bethany McAllister wrote an immigration article “When All Else Fails… File For Asylum?” which we edited—during the editing process she says we subtly altered the meaning of some of her legal arguments relating to the “government” nexus in asylum claims, potentially leading to reader misunderstandings of the law, and included descriptions of torture which she vigorously objected to as uncomfortably similar to torture inflicted by the American government. Ms. McAllister said that she had no intention of implying or saying anything about the American practices in treatment and detention of ‘unlawful combatants’.”

Therefore, here below please see the original article as written by Ms. McAllister, substantially unedited.

When All Else Fails… File For Asylum?

Many noncitizens believe that asylum is their last resort for staying in the United States. They go through a mental list of options – marriage; change of status; labor certification; extensions of tourist visas; temporary protected status; marriage again… and the list goes on until they realize that they have no hope. And then they remember that a friend of a friend with “the exact same case” was granted asylum. All of a sudden asylum is the one and only guaranteed solution.

What is Asylum?

Let’s first answer this question by explaining what asylum is not. Asylum is not a “last-resort solution.” Noncitizens should apply for asylum if they have honest and valid reasons for seeking this benefit. If a noncitizen files a frivolous asylum application, he may be banned forever from receiving immigration benefits.

How Can I Prove That I Qualify for Asylum?

Now let’s discuss what asylum is, and who can establish eligibility for asylum. The United States grants asylum to protect people and their family members who have suffered in their home countries. Asylum applicants must demonstrate three basic things. First, noncitizens must file within one year unless he falls within certain exceptions. In either case, a person seeking asylum should not take the risk of believing that he will fall into an exception.

Second, asylum applicants must prove that they have suffered persecution in the past or have a well-founded fear of being subjected to future harm.

There are numerous forms of abuse. Attorneys or qualified nonprofit organizations can assist an applicant is recognizing the types of harm which apply to a specific case. The most obvious harms include torture, and other physical forms of abuse. The harm must be associated with the government where the government directly inflicts the harm; permits the harm to occur; or lacks the ability to prevent the harm.

Third, asylum applicants must suffer the harm on account of his membership in a particular group. There are five classifications. The asylum applicant must prove that he or she is a member of a certain race, religion, nationality, political organization, or social group. It is not enough to prove that he or she was attacked by a group of enemies, and the police refused to intervene. This is unfortunate, but it is insufficient
to establish eligibility for asylum. The noncitizen must prove that he
was singled out for one of the five reasons stated above.

How Do I File for Asylum?

There are two ways to file for asylum. Noncitizens may file both affirmative and defensive asylum cases depending on their legal status in the country. Noncitizens who are not in immigration court proceedings file affirmative asylum applications. Defensive asylum filings apply to noncitizens who file in court. These asylum applications are called “defensive applications” because noncitizens file them in court as a means to defend themselves from impending deportation.

What Happens in an Affirmative Asylum Case?

Filing an affirmative asylum case is very similar to defensive filings.
In the affirmative case, noncitizens complete their applications and submit them to the United States Citizenship & Immigration Services
(“CIS”) with the appropriate documents . CIS will process the application and set an appointment for the asylum interview. Asylum interviews may last several hours. The asylum officer will review the application and then proceed with relevant questions. Asylum applicants will receive the decision in the mail. If the case is granted, the noncitizen can rejoice.
If the case is not granted, the asylum officer will refer the asylum application to the immigration judge for review. If the asylum applicant is currently in status, the asylum officer will not refer the case to the immigration judge because he or she already has a legal basis for staying in the country. Noncitizens should think of the referral to the immigration judge as a “second chance” rather than a loss. Immigration court is intimidating and uncomfortable, but it is crucial to approach this second opportunity without giving in to fear and stress.

What Happens When the Asylum Application is Referred to the Immigration Judge?

Pursuing an asylum case in court is not much different than filing for any other application for relief filed in court. The first hearing that is scheduled is called the “Master Calendar Hearing.” At this time, the asylum applicant must inform the judge that he or she wishes to continue with the asylum application. Then the immigration judge will schedule the “Individual Hearing.” The Individual Hearing is the trial. A trial can last for several hours.

Although there are many legal elements involved with establishing eligibility, there are very important things that all asylum applicants must understand. Asylum interviews and trials require asylum applicants to testify in a consistent manner while recalling emotionally stressful events in great detail. If the asylum applicant gives inconsistent answers, then the asylum officer or immigration judge may conclude that the applicant is not credible and will deny the case as a result.

Asylum applicants must pay close attention to the names of people, places,
and dates of significant events. In one true example, twelve members of
a militia entered into an applicant’s home in the middle of night and asked his father to go to the door. The applicant testified that he was sleeping inside of the back bedroom. The applicant’s mother refused to permit the men to enter and they pushed her aside. They kidnaped the applicant’s father. The applicant and his family did not see or hear from their father until three days had passed. A shepherd from a neighboring village stumbled upon a body and informed members of the village. One person recognized the victim and informed the applicant’s family. The applicant testified in court that the militia killed his father execution style with one shot to the head. The militia left the bullet casing in his left shirt pocket.

The immigration judge asked the applicant how many militia men had entered the home. The applicant answered that six people had kidnaped his father.
The immigration judge determined that the applicant was not telling the truth, she said, because he had “no way of knowing how many people entered the home since he was sleeping.” The immigration judge further concluded that the applicant had no way of knowing exactly “who” executed his father since he did not witness the event in person.

It is more than obvious that the immigration judge was being unreasonable.
However, the applicant could have explained that his mother told him how many militia men had entered their home, or that while he was lightly sleeping , he heard six different voices– but that he had no way of counting the exact number of them.

The lesson from this experience is to prepare for asylum interviews and trials. Asylum applicants should review their applications in detail.
They must make sure that all of the dates and names are correct. If more than one militia is involved in an incident, the applicant must make sure that he does not mistakenly interchange the names. If the applicant made a mistake on the application, he should inform the asylum officer or the judge of the necessary changes before he testifies. He must also provide a very solid explanation for the error or omission. One explanation may be that there was a language barrier.

Asylum applicants must also be aware that, just as not all nonimmigrants have similar cases, not all jurisdictions treat asylum cases in the same manner. For example, some jurisdictions have reputations of being more harsh and restrictive than others.

The best advice for a person who is filing for asylum is to tell the truth– and tell it consistently.

This article does not constitute legal advice and those with immigration problems should seek out the services of a competent immigration specialist.

Ms. McAllister is an attorney in private practice in Dearborn, MI. If you are interested in speaking to her, please direct local Michigan immigration inquiries to Ms. McAllister by telephone at (866) 584-4411.

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