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Legal Intricacies Involved In The Process of Obtaining Asylum

By James

Thousands of noncitizens enter or try to enter the United States each year in the hopes of applying for and being granted asylum in the country. The process of granting asylum is a complex and tedious process that involves multiple government agencies. Asylees have the potential opportunity to live in the United States permanently, receive benefits, and be reunited with their family members. If someone hails from a country where they have faced persecution or if they have a well-founded fear of being persecuted upon return to that country, they can decide to seek either refugee protection or asylum. The criteria for obtaining these protections are stricter than people generally expect. They need to be familiar with the legal requirements for asylum or refugee status and potentially have evidence and documentation showing that you meet the requirements.

In order to establish eligibility for asylum status in the United States, It must be proven that you are either the victim of past persecution or have a justified fear of future persecution. For cases of past persecution, it has to be proven that you were persecuted in your home country and the persecution must be based on at least one of five grounds that are:

  • Race
  • Religion
  • Nationality
  • Political opinion
  • Membership of a particular social group

It is the most difficult part of applying for an asylum where you have to prove the connection between the persecution and one of these grounds. In 2005, the REAL ID Act added a requirement that one of these grounds be the primary reason for your persecution, this added another layer of complexity to an already complex process. .In some cases a person may also be persecuted based on their gender. Cultural practices in 3rd world countries such as female genital mutilation or forced marriages are also examples of persecution. Legislators and attorneys have been campaigning for years to have domestic violence, honor killing, and human trafficking recognized as legally recognized bases for an asylum application particularly for cases that involve the local government and law enforcement supporting the perpetrator instead of the oppressed victims.

Specific types of persecution are not listed by the law except in one section added in 1996 that states refugees and asylees are people who fear a coercive population control program such as forced abortion or sterilization. However, the large majority of people that do apply for asylum seldom fit into that category. Persecution is the infliction of harm or a serious threat to your life and freedom. This may sound similar to harassment but harassment alone isn’t enough. There have to be elements such as death threats, torture, imprisonment, surveillance, undue pressure, interference with privacy, family, home, or correspondence, or discrimination in housing, education, or passport issuance in order to qualify for the standard of persecution necessary to obtain an asylum.

There needs to be a nationwide threat of persecution against you so that your well-founded fear of persecution is justified and it is shown that you could not have avoided the persecution simply by moving to another part of your country. Simple economic suffering in and of itself is not considered a reason for granting asylum. It is also not enough if someone has a grudge against you or has committed crimes against you for personal reasons. This does not fall into the category of persecution. If you have not been persecuted yet or in the past, you can still qualify for political asylum or refugee status if you have a well justified fear of future persecution in your home country. Let’s say that you acted as the secretary of a dissident group in your country and people have sent you death threats or perhaps have killed another member of your group, in such a situation your fear of persecution is well justified.

The primary reason for the persecution you are facing must be either your race, religion, nationality, membership in a particular social group, or political opinion. However, it is not necessary that you are singled out for persecution from the members of a persecuted group. The only thing that you need to show is a pattern where groups of people similar to you are being persecuted. Secondly you must prove that you belong to the persecuted group. Some people have the misconception that only government aided or backed persecution is applicable in an asylum scenario. This could not be farther from the truth. Persecution is not only when it is fomented by government or other authorities such as police or security forces but persecution carried out by groups such as guerrillas, warring tribes or clans, paramilitary group, or organized vigilantes that are outside the realm of government control.

However, it is mandatory that persecution have some political or social basis. It’s not like if you are being targeted by a mobster for gambling debts, such a situation is not legally recognized as persecution for the purposes of granting asylum or refugee status. In order to show that you have a well justified fear of persecution, it is necessary to demonstrate the presence of both subjective and objective reasonable fear in your situation. Subjective fear generally refers to a personal fear of returning to your native country whereas objective fear refers to your ability to demonstrate facts, based on objective evidence or persuasive, credible testimony that a reasonable person in your position would fear persecution.

Sometimes people who have been persecuted in the past and are seeking asylum in the US for fear of continued persecution in the future are told by USCIS that their country is now considered safe and that the hazardous conditions have mellowed down so it is safe for you to return. In such a situation, you can still be successful in obtaining asylum in the United States. This is referred to as a humanitarian asylum. Humanitarian asylum is applicable only if you can demonstrate compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution faced or if there is a reasonable potential that you may suffer serious harm upon removal to that country.

If you are facing persecution in your country of origin and you want to apply for asylum in the U.S. then it is imperative for you to consult with an experienced U.S. immigration attorney who can help you to deal with the intricacies and complexities involved in the legal process.

Author Bio:

Going through a divorce in Sullivan County, NY? Contact a Sullivan County, NY Family Law attorney or Monticello, NY Criminal Defense lawyer.

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