Asylum

Every year thousands of people from all over the world come to the United States in hopes to escape persecution they suffer or fear to suffer in their home countries due to:

• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion

If you fall under one of these categories, you may be eligible to apply for asylum.

In addition, sexual orientation and transgender status are also considered valid grounds for asylum (also known as the “gay asylum”) for many people from various countries.

Some countries not only prohibit gay marriages but also make it illegal to express any emotions among the gay couples in public, calling it “propaganda of homosexuality”, and establish criminal penalties for such behavior. The United States supports sexual freedom to all members of the society, therefore, USCIS may grant asylum to the foreign members of the LGBT community if they suffer or fear to suffer persecution in their home countries.

The asylum process may take a long time depending on the facts in your case. Also, there are very strict deadlines and qualification requirements in the asylum cases. You may need to consult with an attorney to determine your eligibility for asylum.

FGM - Female Genital Mutilation is a type of asylum claim that falls under membership in a particular social group ground that is complex.  Female genital cutting is a traditional practice in which women and girls are forcibly subjected to the cutting and/or removal of some of all of their genitalia. There are many variations on the practice, and it causes lifelong medical, psychological, and sexual complications. Female genital cutting is common in parts of the western, eastern, and northeastern regions of Africa and in some countries in Asia and the Middle East.

Withholding of Removal -- A form of relief that allows a non-citizen in the United States who is facing removal or deportation from this country to stay because that person is very likely to suffer persecution based on race, religion, nationality, political opinion, or membership in a particular social group in their home country. It is similar to asylum, but is only available to non-citizens who have been put in removal proceedings.

Someone in removal proceedings who hopes to have their removal withheld must be able to show that they are a refugee (someone who has been forced to leave a country because of war or for religious or political reasons) and that there is a very clear probability they will be persecuted if they are sent back to their home country. They need to be able to provide convincing evidence of persecution, both past and potentially in the future, to be considered for withholding of removal.

For a non-citizen who fears persecution with a return to their home country and finds themselves in removal proceedings when they have been in the United States for more than one year, withholding of removal may be their only option to remain here, since they have missed the 1 year deadline for requesting asylum. Withholding of removal may also be an option for someone who is ineligible for asylum because of an aggravated felony conviction, since aggravated felons may have removal withheld in instances where the criminal sentence was less than five years, either served or suspended.

While withholding of removal is similar to asylum, in that it allows a non-citizen to remain in the United States and work legally, it does not allow them to apply for LPR status. Nor does it allow a non-citizen who is granted withholding of removal to apply for derivative status for their relatives. Additionally, if someone who has been granted withholding of removal leaves the United States, they will not be allowed to return. Further, someone who has been granted withholding of removal status may have their case revisited if conditions in their home country change, and the withholding of removal status may be taken away. However, someone who has “firmly resettled” in a country other than their home country may be granted withholding of removal while they would not be eligible for asylum.

NEW DEVELOPMENTS TO POLITICAL ASYLUM

• INTERPRETERS

Starting September 13, 2023, asylum applicants must bring an interpreter to your asylum interviews if you are not fluent in English or which to proceed in a language other than English. If you do not provide your interpreter, and you do not establish good cause, USCIS may consider it a failure to appear at your interview. This may result in a dismissal or referral to an immigration judge.

Remember that an interpreter  must be 18 years old or older, not an attorney, not a witness, not a representative or employee of the applicant’s government or have an asylum application pending.

• TRANSIT BAN STATUS

The Northern District Court of California granted a preliminary injunction in East Bay Sanctuary Covenant v. Barr to bar the application of the final rule implementing the Third Country Transit Ban. The final rule provided that any foreign national who enters, attempts to enter or arrives in the United States across the southern land border on or after July 16, 2019; after transiting through at least one country outside the individual’s country of citizenship or nationality or last lawful habitual residence en route to the United States, shall be found ineligible for asylum unless certain limited exceptions apply.

If the preliminary injunction was not granted, the rule would have taken effect on 01/19/2021.

• Asylum Processing Rule (ARP)

This is the most significant change to asylum adjudication process. Noncitizens present at the Port of Entry without a visa or apprehended within 100 miles of the border and within 14 days of arrival in the United States can be served with an expedited order of removal. This changes the way DHS processes individuals in expedited removal. These changes to procedures for Credible Fear Screening and consideration of Asylum Withholding of Removal and CAT Protection Claims by asylum offices went into effect on May 31, 2022.

• Asylum seekers who pass a credible fear interview will have their interview count as an asylum application before USCIS.
• If credible fear interview is successful, the asylum applicant will have an asylum merits hearing interview (AMI) scheduled within 21 to 45 days. The officer will not be at the border but in designated cities.
• If the AMI is denied, the case will be referred to an Immigration Judge in the same designated city and it is expected to be resolved within 2 to 4 months.

The rule is currently being applied to certain asylum seekers within the definition.

Similar to asylum, there are reasons that would prevent the granting of withholding of removal to a non-citizen who fears persecution in their home country.

Reasons include:

• persecution of others,
• conviction for a particularly serious crime,
• commission of a serious nonpolitical crime outside the United States, and
• terrorism.

Once you are granted asylum, you will be able to work in the United States and bring your family over. After the recent Supreme Court ruling on Defense of Marriage Act (DOMA), it also became possible to bring foreign gay spouses to the United States.  One year after you were granted asylum, you can apply to adjust your status to a Lawful Permanent Resident (“Green Card”).

If you have any questions regarding asylum and would like to schedule a consultation with The Law Offices of Michelle Neal, then please call us at (312) 566-9574 or complete our online form.