ASYLUM LAW WORKSHOP What does love look like? It has the hands to help others. It has the feet to hasten to the poor and needy. It has eyes to see misery and want. It has the ears to hear the sighs and sorrows of men [women and children]. That is what love looks like. -Saint Augustine Alen Takhsh, Esq. TAKHSH LAW, P.C.
ASYLUM: Definition Immigration and Nationality Act (INA) Title 8, United States Code, Aliens and Nationality INA 101(a)(42)(A) defines refugee INA 208 covers asylum [A]ny person who is outside any country of such person s nationality... 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.
ASYLUM: Components 1. Well-Founded Fear 2. of Persecution 3. Perpetrated by the government or an entity the government cannot control 4. On account of one or more of the following: Race Religion Nationality Political Opinion Membership in a Particular Social Group
ASYLUM: Well Founded Fear Applicant carries burden of proof and the standard is one of reasonable probability Lower than preponderance of the evidence (51%) One in ten probability INS v. Cardoza-Fonseca, 480 U.S. 421 at 431 Has objective and subjective components: 1. Applicant must have fear (subjective) 2. Fear must be reasonable, i.e. well-founded (objective)
Well Founded Fear (cont.) Matter of Mogharrabi, 19 I& N. Dec. 439 (BIA 1987) a. Applicant possesses belief or characteristic persecutor seeks to overcome b. Persecutor knows or is likely to become aware of characteristic c. Persecutor has capability & inclination to punish May be established two ways: 1. Past persecution Legal presumption of future persecution (8 C.F.R. 1208.13) 2. Likelihood of future persecution DHS can rebut with proof by preponderance of evidence of changed circumstances or reasonableness of internal relocation
ASYLUM: Persecution Persecution Behavior that threatens death, imprisonment, or the infliction of substantial harm or suffering. (Sayaxing v. INS, 179 F.S3d 515, 519 (7th Cir. 1999)) Examples: detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture (Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995)) Must be inflicted by government or by entity government is unwilling or unable to control
ASYLUM: On account of & PSG Race, Religion, Nationality, Political Opinion and/or Membership in a Particular Social Group (PSG) Membership in PSG: Need to establish: 1) viability of PSG; and 2) nexus between persecution suffered / feared and PSG Important: a social group cannot be defined exclusively by the fact that its members have been subjected to harm. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69 (BIA 2007)
ASYLUM: PSG (Cont.) Per BIA, PSG Must Be: 1) composed of members who share a common, immutable characteristic (Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985)); i.e. members of the group either cannot change, or should not be required to change, because it is fundamental to their individual identities or consciences e.g. homosexuality; prior gang membership 2) defined with particularity (Matter of S-E-G-, 24 I&N Dec. 579, 584 (BIA 2008); and 3) socially distinct within the society in question (Matter of C-A-, 23 I&N Dec. 951 (BIA 2006))
ASULUM: PSG (Cont.) 7 th Circuit on BIA s Definition of PSG: It Makes No Sense (Gatimi v. Holder, 578 F.3d 611 (7th Cir. 2009)) INSTEAD, Acosta still good law / governs PSG analysis (Cece v. Holder, 733 F.3d 662 (7th Cir. 2013)): 1) Identify cognizable social group, i.e. members who share a common, immutable characteristic (Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985)); 2) Establish applicant is a member of cognizable social group identified; and 3) Show applicant would be persecuted or has a well-founded fear of persecution based on, i.e. on account of, said membership.
ASYLUM: One Year Deadline Must file application within one year of most recent arrival to the U.S. INA 208(a)(2)(B); 8 C.F.R. 208.4 (a) e.g. Entry by January 1 st ; Filing by December 31 st Limited Exceptions INA 208(a)(2)(D); 8 C.F.R. 208.4(a) 1. Changed country conditions or personal circumstances 2. Extraordinary circumstances (e.g. illness, incapacity)
Withholding of Removal Alternative remedy (INA 241(b)(3)(A)) Same statutory definition as asylum ( refugee ) Heightened burden of proof ( more likely than not = > 50%) Form of relief available if one (1) year filing deadline missed Non-discretionary, but permanent residency not available
ASYLUM APPLICATION PROCESS Application Process I-589, Application for Asylum and for Withholding of Removal Passport/Birth Certificate/ID Card Asylum Statement Supporting Evidence (Subjective) Supporting Evidence (Objective) INTERVIEW Tips and Do s & Don ts
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