Permanent (Immigrant Visas) Green Cards

Asylum and Withholding of Removal

An alien may be granted political asylum when the alien is unwilling or unable to return to his country because he has suffered past persecution or has a well-founded fear of future persecution based upon his race, religion, nationality, membership in a particular social group, or political opinion.

Political Asylum

The regulations provide for a group of INS officers to be specially trained in international law and international relations, in order to decide asylum applications.

The asylum application must include an I-589 Form in triplicate, an additional copy for each family member, two photographs of the applicant as well as two photographs of each dependent applying with him, a fingerprint card, proof of family relationships and all documents supporting the asylum claim.

An application of asylum is automatically deemed an application for withholding of removal.

The asylum application must be filed within one year of the applicant's arrival in the United States, unless there were changed circumstances in the applicant's country or extraordinary circumstances apply

Extraordinary circumstances are events that were beyond the applicant's control, which caused the applicant to miss the one-year deadline. The one-year deadline is excused if the alien is able to file the application within a reasonable amount of time, given the circumstances. It is up to the applicant to prove that the circumstances were beyond their control, and that but for these circumstances, the applicant would have filed the application before one year had passed.

Extraordinary circumstances include:
1) serious illness or mental or physical disability that lasts for a significant amount of time, including the effects of past harms suffered, that occurs during this first year in the US
2) a legal disability is present, such as with an unaccompanied minor or mentally impaired individual
3) ineffective assistance of counsel is an extraordinary circumstance, provided that:
a) an affidavit is filed by the alien as to what the agreement was with counsel and what representations were made by counsel
b) counsel must have been informed of the allegations against him and been allowed an opportunity to respond
c) there must be a statement as to whether a complaint has been filed, and if not, why it has not been filed
4) the alien had Temporary Protected Status until a reasonable time before the asylum application was filed
5) the alien did submit an asylum application, but the application was rejected by the INS, returned for corrections and the alien refiled it within a reasonable time

Eligibility for Asylum

The burden is on the applicant to prove that he or she meets the definition of "refugee." The applicant's testimony may be sufficient to establish this, without other evidence, if the asylum officer believes that the applicant is credible.

Definition of Refugee

An applicant is a refugee, eligible for political asylum, if he or she has suffered persecution in the past OR if the applicant has a well-founded fear of future persecution, were he or she to return to their country.

Past Persecution

If an alien can establish the he or she has suffered persecution in the past in his or her last place of residence or country of nationality on account of either race, religion, nationality, membership in a particular social group, or political opinion, she will be considered a refugee. The alien must also be unwilling or unable to return to his or her country because of this persecution. 

If an applicant is determined to have suffered from past persecution, they will be also judged to have a well-founded fear of future persecution, unless the conditions in the applicant's country have changed to such an extent that the applicant no longer has a well-founded fear of persecution were the applicant to return to their country.

If the alien has shown past persecution, but is not shown to have a fear of future persecution were he to return to his country, the application for asylum will be denied, unless the applicant sets forth compelling reasons for being unwilling to return to their country, based on the severity of the past persecution.

Well-founded Fear of Future Persecution

An applicant must first establish that he or she has a fear of persecution in his or her country based upon race, religion, nationality, membership in a particular social group or political opinion. Second, the applicant must show that there is a reasonable possibility that such persecution would occur if the alien returned to his or her country. The alien must also assert that he or she is unwilling or unable to return to their country because of this fear of persecution.

An applicant can prove a well-founded fear of future persecution, not just through persecution that has happened to them personally, but the applicant can establish:
1) that there is a pattern and practice in his or her country of persecution of the group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group or political opinion AND
2) that the applicant is a member of some such group such that the applicant's fear of persecution is reasonable

Aliens who are not Eligible for Asylum

1) those who it is determined could find a safe haven in a third country where the alien would not be threatened based on any of the enumerated factors, unless it is in the public interest to allow them asylum in the US
2) those who have been in the US for over one-year, without submitting the asylum application
3) those who have previously been denied asylum in the US
4) if the alien can prove changed circumstances which effect the applicant's eligibility for asylum, he may apply, regardless of falling into the above categories
5) aliens that have been convicted of a particularly serious crime
6) aliens that there are serious reasons to believe have committed a serious nonpolitical crime outside of the US
7) the alien was involved in the persecution of any person based on race, religion, nationality, membership in a particular social group or political opinion
8) aliens that are inadmissible to the US for terrorism reasons, unless they are determined to not be a danger to the security of the US
9) aliens that have been "firmly resettled" in another country prior to arriving in the US
10) aliens that have been convicted of an aggravated felony

"Firm Resettlement"

Firm Resettlement is defined as being offered a permanent resettlement option in another nation. It is not, however, considered firm resettlement if the alien can establish that entry into that nation was necessary in order to escape persecution, and that the alien only remained there as long as was necessary to arrange his travel to another country and that he did not establish strong ties there. The alien can also show that the conditions of his stay in the country of refuge were so restrictive that the alien was not resettled there.

Interview with an Asylum Officer

The asylum interview is conducted as an informal exchange between the asylum officer and the applicant, and is closed to the public, unless the applicant requests otherwise. An attorney may be present if the applicant retains an attorney. At the time of the interview, the asylum applicant must provide complete information regarding their identity, including name, date and place of birth, and nationality. The applicant may present witnesses and may submit affidavits from witnesses and other evidence to support their claim. 

Interpreter

The applicant may also have an interpreter present. The interpreter must be fluent in both English and the other language, must be over 18 years of age and cannot be the alien's representative, a witness for the applicant, nor can the interpreter be a representative or employee of the applicant's country of nationality.

Documentation

The applicant should present a detailed account of the persecution they have faced and their reasons for seeking asylum. They should present as much documentation as they can to substantiate their claim, including certified translations for foreign language documents. The applicant may submit documents before and during the asylum interview. If the asylum officer agrees, the applicant may be given more time in order to submit documentation as additional evidence of their claim.

The applicant must appear in person to receive the decision of the asylum officer.

Employment Authorization

An asylum applicant who is not an aggravated felon is eligible to apply for Employment Authorization, but may only be submitted after 150 days after the completed asylum application was submitted to the INS. If the applicant has been recommended for approval, they may apply for work authorization upon receipt of the notice of approval.

If the asylum application is denied after the issuance of the work authorization, the work authorization shall expire at the end of its term, or 60 days after the denial of asylum, whichever is longer.

Renewal of Work Authorization
In order to renew work authorization, the alien must submit an I-765, the required fee, and proof that the alien is continuing to pursue his or her asylum application.

Admission of an Asylum Applicant's Spouse and children

A spouse or child may be granted asylum if accompanying or following to join the principal asylum applicant. This is so unless the spouse or child has been involved with the persecution of another based upon the five factors, unless the child or spouse has been convicted of a particularly serious crime, has been convicted of an aggravated felony or if there are reasonable grounds for regarding the spouse or child as a danger to the security of the United States.

The relationship must have existed at the time of the approval of the asylum application, except for children born to or adopted by the principal alien and spouse after approval of the asylum application. The burden of proof is on the alien to prove that the person on whose behalf he is requesting asylum under this section is an eligible spouse or child

Withholding of Removal

If an alien is otherwise eligible for asylum, but the yearly cap of 1,000 asylum visas has already been met, the asylum officer or IJ can withhold removal of that alien, whether or not asylum is granted.

The burden of proof is on the applicant to establish that his or her life or freedom will be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group or political opinion. The testimony of the applicant, if credible, may be sufficient to prove this. The applicant must prove that it is more likely than not that they will be persecuted based on the above factors. If the applicant shows that he has been subject to such persecution in the past, future persecution will be presumed, unless country conditions have changed to such an extent that the applicant should no longer fear persecution.

Just as with asylum claims, if a person establishes that there is a pattern and practice of persecution of a class of persons based on the five enumerated factors, and he establishes that he is a member of or identifies himself with such class, then he need not establish that he would be singled out for persecution.

Termination of Asylum or Withholding of Removal

An alien who has been granted asylum may not be deported or removed unless his or her asylum status is terminated. If an alien's asylum status is terminated, the alien will be given notice of the intent to terminate, and will be given the opportunity to present evidence that they are still eligible.

Termination may occur if:

1) there was a showing of fraud in the asylum application such that the alien was not eligible for asylum at the time it was granted
2) the alien no longer has a well-founded fear of persecution
3) the alien has committed an act that would have made him or her ineligible for asylum if that act would have been committed before the grant of asylum

Admission for Permanent Residence

Every alien admitted to the US as a refugee whose status has not been terminated, may appear before an immigration officer one year after entry to determine their admissibility to the US as a permanent resident. The applicant will be questioned under oath as to his or her admissibility and if found to be admissible, he or she shall be admitted for lawful permanent residence as of the date the alien arrived in the US. If the applicant is denied, he will be allowed to renew his request for such status in exclusion proceedings.

Adjustment of Status for Aliens Granted Asylum

An alien that has been granted asylum in the US is eligible to have status adjusted to that of a permanent resident if:
1) the alien applies for adjustment
2) the alien has been physically present in the US for at least one year after having been granted asylum
3) continues to be a refugee as defined above (or the spouse or child of a refugee)
* An alien who was granted asylum before November 29, 1990 may still adjust status if he meets all the other requirements for adjustment, but is no longer a refugee because of changed country conditions.
4) has not been firmly resettled in any other country
5) is admissible
6) and has a refugee number available to him (If there are no more refugee numbers available at that time, the applicant will be put on a waiting list according to the date the application for adjustment was properly filed.)