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    Asylum Frequently Asked Questions

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    Why Lin & Valdez LLP

Content:
  1. What is Asylum
  2. Definition of Past Persecution
  3. Well-Founded Fear of Persecution
  4. Grounds for Asylum
  5. Special Subcategories of Political Opinion for Asylum
  6. Mixed Motives of Persecution
  7. Withholding of Removal
  8. Relief under the Convention against Torture
  9. Application Procedure for Asylum
  10. Affirmative Asylum Application Process with USCIS
  11. Defensive Procedure with the Immigration Court
  12. Petition for Family Members after Asylum is Granted
  13. Lawful Permanent Residency After Asylum is Granted
  14. Why Lin & Valdez LLP and How to Start
  15. Frequently Asked Questions(Click Here)

 
1. What is Asylum

Asylum is a form of relief available to an individual who qualifies as a "refugee" and who fears persecution, harm, or torture in his/her home country or country of last residence. Any alien who is physically present in the United States or arrives in the U.S., regardless of status, may apply for asylum subject to certain restriction.

To qualify as a refugee, an asylum applicant must show and prove that he/she can not return to his/her home country or is unable to avail himself/herself of the protection of that country because of past persecution or a "well-founded fear" of persecution on account of:

(1) Race;
(2) Religion;
(3) Nationality
(4) Membership in a particular social group; or
(5) Political Opinion

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2. Definition of Past Persecution

According to case law, persecution is 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". Some examples of persecution are: threats to life, confinement, torture, inhuman or degrading treatment, sexual assault, severe economic deprivation, and arbitrary interference with a person's privacy, family and home, among others.

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3. Well-Founded Fear of Persecution

When an applicant establishes that he/she has suffered past persecution, the applicant is presumed to have a well-founded fear of future persecution, if there has not been a fundamental change in circumstances and no expectation of relocation to another part of the home country.

Even when there has been a change of circumstances or an expectation of relocation, an applicant may still be granted asylum if the applicant has demonstrated convincing reasons for being unable to return to the country due to the severity of the past persecution; or the applicant has established that there is a reasonable possibility that he/she may suffer other serious harm upon removal to the home country.

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4. Grounds for Asylum:

Aliens who apply for asylum must demonstrate that the persecution they suffered or fear is carried out, directly or indirectly, by the government of their country or that the government cannot protect them. They should also demonstrate that the persecution is "on account" of one of the five asylum grounds:

(1) Race. An applicant who applies for asylum on the grounds of race must demonstrate that he or she suffered or fears discrimination and persecution because of his/her ethnicity and race.

(2) Religion. An asylum claim on the grounds of religion may take several forms, such as: prohibition of membership in a religious community, prohibition of worship privately or publicly, discrimination on persons because they practice their religion or belong to a particular religious group. The applicants must demonstrate that the motivation of the persecutor is to harm them because of their religious beliefs.

(3) Nationality. This ground includes citizenship and membership in an ethnic or linguistic group. Sometimes it can be related with race. Applicants must show that they were subject to adverse regulations and harm because of their nationality, ethnicity and/or linguistics.

(4) Membership in a particular social group: The case law interprets this ground as "persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. It can be a shared characteristic such as sex, color, or kinship ties or a past experience as a leader for a known social or military group. The common characteristic must be one that the members of the group either cannot change, or should not be required to change." The applicant must demonstrate that the persecution is on account of the group's characteristics.

(5) Political Opinion: a person who manifest a political opinion and is persecuted or fears persecution by it, may apply for asylum on grounds of political opinion. The applicant's opinion is considered political when it regards the government, its laws, its policies, and the political situation of his or her home country or any governmental action. The manifestation of the opinion includes beliefs, words and actions.

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5. Special Subcategories of Political Opinion for Asylum

(1) Imputed Political Opinion. A claim for asylum on grounds of political opinion can also be made if the applicant was erroneously attributed with a political opinion.

(2) Neutrality. An alien may apply for asylum on the basis of his neutrality regarding political opinion. The applicant has to demonstrate that he was singled out because he affirmatively manifested neutrality as political opinion and suffered or fears to suffer persecution because of it.

(3) Coercive Population Control. Persons who have suffered or who fears persecution for resistance to coercive population control programs are considered to have a well-founded fear of persecution on account of their political opinion.

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6. Mixed Motives of Persecution

In some cases, the grounds for persecution may overlap; therefore one person may apply for asylum on account of more than one ground. Also, the persecutor may have more than one motive, one that is a protected ground and one that is not. According to case law, the applicant does not need to establish the exact motivation of a persecutor where different grounds for the persecutor's actions are possible. However, the applicant must provide evidence from which it is reasonable to believe that the harm was motivated, at least in part, by a protected ground. When there is more than one motive, at least one of them has to be a protected ground.

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7. Withholding of Removal

To qualify for Withholding of Removal, an alien must establish that it is more likely than not that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion in the home country. The standard for granting of the relief for withholding of removal is higher than asylum (which requires "convincing evidence" standard). If the withholding of removal is granted, the alien cannot be removed to the country where his life or freedom would be threatened. The alien may be moved to a safe third country.

The difference between the relief of asylum and withholding of removal is multiple. Firstly, the application of withholding of removal can be filed any time after a person is in the US, v.s. having to be filed within one year after entrance as in asylum. Nevertheless, the granting of withholding of removal does not give the applicant the chance to apply for green card one year later as in the granting of asylum. In other words, the recipient of withholding of removal can legally stay in the US, but can not apply for green card based on it. To seek permanent residence, the applicant will have to apply through other employment or family based immigration route.

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8. Relief under the Convention against Torture

Under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, applicants may be granted withholding of removal if they demonstrate that it is more likely than not that they would be tortured in the home country. For an act to be considered torture it must be an extreme form of cruel and inhuman treatment, it must cause severe physical or mental pain and suffering, and it must be specifically intended to cause it. Torture must be inflicted by or at the instigation of, or with the consent or acquiescence of a person acting in an official capacity.

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9. Application Procedure for Asylum

To apply for asylum a Form I-589 Application for Asylum and for Withholding of Removal must be file. Aliens may ask for asylum if they are arriving to the U.S., at a port-of-entry, such as the airport, seaport or border crossing. If the alien is already in the United States, the application for asylum must be file within a year of the applicant's last arrival. Within the application for asylum, the alien may also apply for Withholding of Removal and Relief under the Convention against Torture. The asylum application can also be filed in immigration court if the application is in removal proceeding. The application procedure is further discussed below.

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10. Affirmative Asylum Application Process with USCIS

An asylum application may be filed with the United States Citizen and Immigration Services ("USCIS") within a year of the applicant's last arrival to the U.S. regardless of the applicant's visa status as long as the applicant is not in removal procedure. There is no filing and fingerprinting fee. After the filing of the application, the applicant will receive a notice from the Immigration Service with the appointment information for his fingerprints to be taken. Applicants are subject to a biometrics check of all appropriate records. No later than 45 days after the filing date of the application, an initial interview will be scheduled. The applicant will receive a notice stating the date, time and location of the asylum interview. The interview has the purpose to obtain all relevant and useful information bearing on the applicant's eligibility for asylum. After the interview, the applicant will receive the decision either by picking it up at the asylum office or by mail. An applicant who is not granted asylum and is referred to the Immigration Court may renew his request for asylum or any other relief before the Immigration Judge.

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11. Defensive Procedure with the Immigration Court

If an alien is served with a charging document titled "Notice to Appear", he is subject to removal proceedings (deportation) in the immigration court. An alien may apply defensively for asylum, withholding of removal or Relief under the Convention against Torture before the immigration judge. The asylum application must be filed directly with the immigration court. The applicant will be scheduled for a master hearing in which he will file the application with no filing fee. Also, an individual (merit) hearing, meaning final trial, will be scheduled for a later day, during which the applicant will be examined under oath on his application and may present evidence or witnesses on his behalf. The judge may make an oral decision at the end of the hearing and/or a written decision afterwards.

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12. Petition for Family Members after Asylum is Granted

If the applicant's asylum application is granted, whether by the asylum office or by the immigration court, the applicant can apply for his/her spouse and unmarried children under 21 for derivative refugee status if they are not included in the original petition or are not in the US. If the petitioned family members are outside of the US, they will receive a visa from the US consulate to enter the US to be reunited with the applicant. If they are in the US, the approval will bestow upon them refugee status and allow them to apply for green card one year later.

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13. Lawful Permanent Residency After Asylum is Granted

If an asylum application is granted, the asylee or an individual admitted as a refugee may have his status adjusted to lawful permanent resident one year after his grant of asylum or admission as a refugee. To qualify for the adjustment of status, the asylees must apply for adjustment of status, using the Form I-485; have been physically present in the U.S. for at least one year after being granted asylum; continue to meet the definition of refugee; and not be resettled in any foreign country and be admissible as an immigrant.

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14. Why Lin & Valdez LLP and How to Start

Over the years, attorneys of our office have represented hundreds of clients in the asylum, removal, deportation, and various proceedings in the immigration court. Our attorneys have basically appeared before all the immigration courts in Texas, and have appeared for clients in Louisiana and California courts. Our asylum clients are from the four corners of the world including Asian countries, African countries, central and south American countries, and east Europe countries. We have also had the experience handling applications for all the grounds for asylum and handled all types of complex cases. The chief attorney of our firm, Mr. Stewart Lin, started his asylum practice in 1997 and is a regular presence in the asylum office and the immigration court. Through our help, countless number of individuals and family members have been granted refugee status and obtained permanent residence consequently.

If you suffered persecution in your country, or you have reasonable fear of returning to your country because of one or more of the asylum grounds, do not hesitate to contact us. Our firm will provide you attentive representation to help you. To start the application, please call our office to make an appointment with our experienced attorneys. We sincerely wish to help those persecuted to get a free and new life in the US.

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15. Frequently Asked Questions(Click Here)

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