Immigration Law 364A - ASYLUM 

LAST UPDATED - 11 November 2002

DEFINITION OF REFUGEE (ALSO USED FOR ASYLUM APPLICANTS)

    INA section 101(a)(42): The term "refugee" means:

 Any person who is outside of any country of such person’s nationality, or in the case of a person having no nationality, is outside 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, political opinion

I.    ANALYSIS OF DEFINITION OF REFUGEE/ASYLEE

    "Refugee" means:

    A.    Any person who is outside of any country of such person’s nationality, or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and

    B.    who is unable or unwilling to return to, and

    C.    is unable or unwilling to avail himself or herself of the protection of, that country

    D.    because of persecution or a well-founded fear of persectution

          1.    Fear" is a subjective condition.  An alien seeking to qualify under section 101(a)(42)(A) of the Act must demonstrate that his primary motivation for requesting refuge in the United States is "fear," i.e., a genuine apprehension or awareness of danger in another country. No other motivation, such as dissent or disagreement with the conditions in another country or a desire to experience greater economic advantage or personal freedom in the United States, satisfies the definition of a refugee created in the Act.

        2.    "Persecution" is generally construed to mean either a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive. The harm or suffering inflicted could consist of confinement or torture. It also could consist of economic deprivation or restrictions so severe that they constitute a threat to an individual's life or freedom. Generally harsh conditions shared by many other persons did not amount to persecution. Prosecution for violating travel restrictions and laws of general applicability did not constitute persecution, unless the punishment was imposed for invidious reasons.

        3.    Generally harm or suffering has to be inflicted either by the government of a country.  But, in some cases it might include the actions of a 'non-state actor' which the government is either unable, or unwilling to control. 

        4.    The fear must be well-founded.  Standard: a reasonable person in the applicant's circumstances would fear persecution is usually applied.

    E.    on account of

            -    "On account of" means "but for"

            -    Professor Legomsky believes that "on account of" should be interpreted according to its common sense, standard English, meaning—i.e., "because of". Congress apparently shares that view. In IIRAIRA § 305(a), Congress for independent reasons amended the wording of the nonreturn provision. In the course of the rewriting, Congress changed "on account of" to "because of".

        1.    race,

        2.    religion,

        3.    nationality,

        4.    membership in a particular social group, or

                a.    The phrase "particular social group" implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest

                b.    Members possess an immutable characteristic: a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed.

                c.    The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. 

                d.   Nuclear family constitutes a particular social group

                e.    Sexual orientation may be a social group

                f.    FGM is persecution of a particular social group (women from a particular tribe who could be mutilated, or have been.)

                    i.    This has also been the basis for granting Suspension of Deportation (now known as Cancellation of Removal.) 

        5.    political opinion

                a.    Ordinary meaning of the phrase "persecution on account of ... political opinion" in § 101(a)(42) is persecution on account of the victim's political opinion, not the persecutor's

                b.    But, NEUTRALITY may be show as a form of political opinion.

II.    A GRANT OF ASYLUM IS DISCRETIONARY

    A    Reasons a person may be denied asylum: (exceptions to eligibility)

        1.    FIRM RESETTLEMENT

                a.    A person is firmly resettled if they have received an offer to resettle permanently in a third country.

                b.    This is different from "safe third countries" which, through mutual-lateral treaties may allow the INS to remove people to a safe third country

        2.    PAST WRONGDOING

                a.    ASYLUM

                        i.    People who have participation in the persecution of others on account of race, religion, etc. are statutorily ineligible for asylum.

                        ii.    Aggravated felons are ineligible as they are statutorily found to have been convicted of a particularly serious crime AND are a danger to the community..

                b.    WITHHOLDING

                       i.    People who have participation in the persecution of others on account of race, religion, etc. are statutorily ineligible for withholding.

                        ii.    An aggravated felon is eligible for withholding (even if denyed asylum), IF he/she has not been convicted of a particularly serious crime OR is a danger to the community.

                        iii.    Some crimes are inherently "particularly serious"; for those crimes, the individual facts need not be examined. burglary of a dwelling, with aggravating factors; drug trafficking offenses are per se "particularly serious".

                        iv.    There is no requirement for an independent finding that the person is a danger to the community.

                        v.    The crime must be non-political and there should be a close and direct causal link between the crime committed and its alleged political purpose and objects.

[A] "particularly serious crime" is more serious than a "serious nonpolitical crime," although many crimes may be classified [as] both. * * * While there are crimes which, on their face, are "particularly serious crimes" or clearly are not "particularly serious crimes," the record in most proceedings will have to be analyzed on a case-by-case basis.

III.    REFUGEES SUR PLACE

Some refugees sur place attained that status because conditions at home changed while they were away. There might have been a coup, a new political movement, or a suspension of civil liberties.

POSSIBLE WAYS TO BECOME A REFUGEE SUR PLACE

(1)     The alien's departure, or failure to return within a specified time, violated the emigration laws of the country of origin.

(2)     After leaving the country of origin, the alien began expressing political views or engaging in political associations that might lead to persecution upon his or her return.

(3)     The alien applied for asylum, was turned down, and now fears that the very act of having applied for asylum will prompt the government of the country of origin to brand him or her as a subversive or even a traitor.

One especially common group of refugees sur place is defectors. Often these aliens are celebrated athletes, entertainers, or artists who are here as part of a cultural exchange. Because of their prominence, their defections are particularly likely to attract the attention of their governments. They might fall within any of the above categories.

IV.    METHODS OF PROOF

            1.    MATERIAL FACTS

                    a.     Membership in a Persecuted Group

                    b.     Past Persecution: Persecution that an alien has already suffered can be material to asylum eligibility for two reasons. Past persecution is an independent basis for refugee status

            2.    RELEVANT EVIDENCE

                    a.     The Applicant's Own Testimony

                          i.    Courts and the BIA have recognized that "[a]uthentic refugees rarely are able to offer direct corroboration of specific threats or specific incidents of persecution."

                          ii.    The Immigration Judge will make a credibility finding, which must be a legitimate articulable basis for the finding, he/she may consider:

                                -    Demeanor

                                -    Evidence from other sources which refutes the testimony

                                -    Applicant's testimony is internally incosistant

                                -    Actual or deliberate lies about other matters

                                -    Vague or evasive statements

                                -    IJ may reject testimony which is inherently unbelievable 

                    b.    State Department Opinions & Country Reports

                           i.    Individual opinions are rarely issued.  Instead the State Department provides a 'sticker', referring to their Country Report.

                           ii.    http://www.state.gov/www/global/human_rights/hrp_reports_mainhp.html

                            iii.    Reports have been known/shown to fail to adequately portray human rights violations for political reasons.

                            iv.    Although the applicant may not cross-examine the author of the report, he/she may submit evidence to rebut it.

                    c.    Advice from UNHCR

                            i.    There is no formal process for obtaining input from UNHCR.  But, if an applicant obtains it, he/she may submit it.

                    d.    Other Sources of Information

                        i.    Amnesty International

V.    DISCOURAGING ACCESS TO THE SYSTEM

    A.    Filing Deadlines

            1.    Application must be filed within 1 year of arrival, or show

                    a.    Changed circumstances which materially affect the eligibility, or

                    b.    Extraordinary circumstances relating to the delay in filing.

    B.    Detention during application

            1.    Condemed by UNHCR but often employed by the INS

    C.    Employment Authorization

            1.    Congress was concerned that frivolus applications resulted in people obtaining employment authorization.

            2.    EADs are now not issued until at-least 180 days after the filing of the application

    D.    Sanctions

            1.    Attorneys and accredited representatives may now be sanctioned

            2.    An applicant who knowingly made a frivolous application may be permanently ineligible for any future immigration benefits.

    E.    Interdiction

            1.    Used by the INS with Hatians and Cubans

VI.    CONVENTION AGAINST TORTURE

    A.    Adopted in 1984 by the UN 

            1.    'Signing' a treaty does not 'bind' a signatory party, implementing legislation is needed..

    B.    US implemented legislation in 1998

    C.    Relevant provision is article 3.1:

            "No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

VII.    TEMPORARY PROTECTED STATUS

    A.    Parole was also used frequently by the INS for 'humanitarian' admission.

    B.    Originally known as Extended Voluntary Departure (allowed on a country-by-country basis).

    C.     In 1990 Legislation was introduced to provide an 'official' status, known as TPS.

            1.    It is issued for limited periods of time, allows employment authorization

            2.    Special application procedures/timelimits apply.