Marta traveled through the night. She slept in the back of a produce truck, huddled on a pile of hay. As she looked at her eight year old daughter, Natasha, trembling under her coarse blanket, yellow and purple bruises just starting to surface from the latest beating, she promised her out loud, “tomorrow morning we will be free.”
Unfortunately, Marta’s story is not unique. Every year, thousands of families seek refuge from persecution in the United States, and many are unfamiliar with the legal process they will have to undergo to earn the right to stay in this country.
The US government categorizes persons seeking protection from persecution into two classifications: (1) those outside the US are refugees, and (2) those inside the US are asylees. This article will focus on the process of asylum, the legal avenue that many immigrants fleeing persecution use to establish permanent residence in the US.
Under the Immigration and Nationality Act (INA), a person who is “unable or unwilling to return to his or her country of nationality 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” is eligible to seek refugee or asylum status. Of these five basis, social group is the most vague and malleable category. Individuals have been granted asylum claims because they were persecuted as members of social groups like: homosexuals, ex-government workers, and domestic violence victims. A person can gain asylum by showing that they were previously persecuted or by showing that they have a valid fear of future persecution.
In many instances, asylum claims are denied because the applicant fails to show that they are the specific target of persecution, and not a victim of generalized violence. The persecution must be at the hands of an individual who is a government actor or who is acting at the acquiescence of the government. In other words, the asylum applicant must show that the government cannot or will not stop the persecution. The asylum applicant must also demonstrate that there is no viable relocation option available to them. If there is any other location within the home country that the applicant can safely relocate, his or her asylum application could be denied on that basis. With very limited exceptions, the asylum applicant must make the application within a year of arriving in the US. Finally, those who have “ordered, incited, assisted or otherwise participated in the persecution of others” are barred from applying for asylum.
There are two ways to apply for asylum:
- affirmatively, before an asylum officer, and
- defensively, before an immigration judge.
In order to make an affirmative application for asylum, an individual must fill out the Department of Homeland Security’s Form I-589 and submit it to the United States Citizenship and Immigration Services or USCIS. There is no government fee for this application. This form can (and should) be supplemented with such evidence as death certificates and police records of other individuals who have died or been injured due to similar persecution, news articles and publications reporting such persecution, threatening letters from persecutors, and photos of specific incidences of violence. Additional evidence such as letters and reports from non-governmental organizations describing violence and persecution against a specific class are also very helpful. There are many organizations that specialize in reporting human rights violations all over the world and with the advent of technology these sources are much more readily available to asylum applicants today. Of note, the U.S. Department of State issues a country report on human rights practices every year, and these reports are usually an important part of an asylum application.
The first step in an affirmative asylum application is called a credible fear interview. This is performed by an asylum officer, who will review the record and ask the asylee questions regarding past persecution and fear of future persecution. If the asylum officer finds that the applicant has suffered from past persecution or has a well-founded fear of future persecution (or some combination of the two), he or she can grant the asylum application forthright. The officer can also refer it to an immigration court, where removal proceedings will be initiated and the applicant can renew his or her application for asylum before an immigration judge.
A defensive application for asylum before an immigration judge carries a high level of proof. For that reason, the evidence provided, as well as the testimony and candor of the applicant, are crucial to a grant of asylum. At times expert testimony is taken to orient judges about the type of persecution that certain groups suffer as well as to the human rights conditions in specific countries.
Asylum Process Outcome
If the asylum application is denied by the immigration judge, the applicant can be removed from the US if they have no other form of relief. Asylum claims that are found to be frivolous carry severe repercussions, including barring the applicant from applying for asylum again in the future as well as other forms of relief. On the other hand, an asylum grant entitles the asylee to petition for their immediate relatives, including spouses and children, to join them in the US and also allows them to receive certain government benefits designed to help resettling refugees.
It is important to remember that every case is different, and asylees should consult licensed attorneys, even better asylum attorneys with individual questions regarding their cases. Many non-profits also do legal work for asylum cases at little or no cost to the asylee.
Marta’s Asylum Case
In Marta’s case, an asylum officer found that she and her young daughter had a valid fear of persecution and referred her case to an immigration judge. During removal proceedings the judge found that Marta and Natasha had suffered severe and repeated brutality at the hands of her husband, a powerful government actor who had concealed police reports and exerted his influence over the attorney general’s office to force his wife’s claims of domestic violence to be abandoned. Marta had twice relocated to other towns in her home country and had twice been tracked down by agents hired by her husband. Her last heroic flight brought her to the US, where she was granted asylum and was able to make a new life for herself and her young child. Today, the promise she made to her child in that produce truck finally came true as they are both thriving in freedom.