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Getting Asylum In The U.S. Is Neither Cheap Nor Easy

gavve.jpgUnited States immigration law is incredibly complex, namely because so many federal/state agencies are involved. One part of the law says that immigrants in the United States are, in specific instances, able to apply for asylum. In order to qualify to petition, a person must fall under the definition of "refugee":

A "refugee" is any person who is outside his or her country of nationality (or, if stateless, outside the country of last habitual residence) and is unable or unwilling to return to that country because of persecution or well-founded fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.

In fact, refugees compose 1/10th of all annual immigration to the U.S. There is much case law interpreting the above definitions. Practically speaking, an alien must be able to demonstrate that his/her family and life will be persecuted if they return to their home country, because of one of the five categories in the definition. Moreover, the applicant must prove that the government of his/her country is involved in, or unable to control said persecution. There are two types of asylum; affirmative (alien is not currently subject of removal proceedings from the U.S.), and; defensive (alien is subject of removal proceedings but wishes to halt these via asylum).

When a person files for Asylum, he/she must file an I-589 application within one year of arrival. The individual is then scheduled for an interview with an asylum officer through the Asylum Office (Department of Homeland Security). After the interview, a decision is made. If granted, he/she may petition to have his/her family and children brought into the U.S. If denied, the case is automatically referred to Immigration Court (if they have no immigration status).

Once an asylum case is brought to Immigration Court, the judge will consider the entire case, including everything from the Asylum Office proceedings, and make a decision. A judge is permitted to: 1) deny the application wholly; 2) grant it; 3) grant only withholding/protection/removal. Under 3), a person is not entitled to petition to bring family members into the U.S. If No. 1 or 3 is the decision, an alien may appeal to the Board of Immigration Appeals. Further up, an alien may then appeal to the U.S. Court Of Appeals.

A person is thus entitled, if they can demonstrate refugee status, to appeal their case in five different tribunals/courts. This is sure to be expensive and time consuming and is not typically how these cases proceed. Asylum seekers rarely have the means or agency to navigate the process unrepresented. In fact, most asylum cases that are well founded and are denied at stage one only do so because an unrepresented alien made their own application, often incorrectly. It is absolutely necessary that an asylum seeker, in the very least, consults an attorney in completing their initial I-589 form.

The law also provides for special protections to minors under the age of 21, who may be eligible for Special Immigrant Juvenile Status. An alien child that does not have the benefit of parental support, and currently resides in the United States, is unmarried, has been declared a dependent under a juvenile court, among other requirements, may petition their family/surrogate court for this status. Again, many otherwise eligible minors are never given this status, because they go unrepresented.

Currently, there are several hundred thousand pending asylum cases in immigration courts across the country. Many of these cases involve unrepresented aliens who simply failed to accurately and comprehensively complete their initial application process, and may have also failed to prepare properly for their Asylum Office interview. These people are essentially in limbo as they wait for their hearing, and remain vulnerable to deportation/removal proceedings (although final orders are postponed until the asylum case is decided). Evan Xavier Bakhet is a J.D. Candidate at Rutgers School of Law-Newark with a scheduled graduation date in 2017. He collaborated with me on this blog.

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