A person seeking asylum in the USA must face officials who will determine if he has a credible fear of persecution in the home country says Sudhir Shah
In the year 1995 the United States Immigration & Naturalization Service (“the INS”) received about 1,50,000 applications for political asylum. About 30,000 were approved and 1,20,000 were referred for a hearing before the Immigration Judge. Large number of Indians were amongst them seeking political asylum in U.S.A.
The New Immigration Law of USA of the year 1996 provides that a person who arrives at the Port of Entry without proper documents will be given a brief airport interview to determine if he or she has a “credible fear” of persecution in his/her home country. If no such fear is found by the Immigration Officer that person will be sent back to his/her home country. A person may be persecuted for many reasons. However, Refugee Act of the US lists only 5 reasons of persecution for granting asylum. They are (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, and (5) political opinion. To be persecuted is to be pursued to be haunted. It is a case where the Government is the hunter and the citizen is haunted. A case where Government seeks to do harm to a citizen. Many times, the persecutor may not be the Government itself, but to claim asylum it must be an individual or group that the Government is unwilling or unable to control. To claim political asylum in US, the persecution must be country wide and not localized.
An application for asylum can be an “affirmative application” where under a person makes the application to INS. Such applications are decided by an asylum officer. It must be filed within a period of one year of a person’s arrival in US. The person filing such affirmative application is required to show by clear and convincing evidence that he has filed his application for asylum within one year from the date of his arrival in US. In extraordinary circumstances, such as an accident, the delay may be excused.
An application for asylum known as “defensive application” can be made when a person is facing an action of exclusion or deportation which is now called “removal”. Such an application is heard by an Immigration Judge and there is no time limit for making it. It can be made as and when removal proceedings are adopted.
A person who could make an application for asylum to a country that could receive such application for asylum which country he visited or made a stop over on his flight from his home country to U.S. and did not make such application in that safe third country cannot then make on application for asylum in US. For example a Jew who fled from Russia and on his way to USA stopped for a day in Israel but did not make an application for asylum in Israel and instead made the same in US. His application for asylum in US would be rejected since he could have received sanctuary in Israel as a Jew. People who arrive at the port of entry to US without documents or with improper documents will be placed in expedited removal proceedings and sent to their home country on the next plane unless they convince the immigration officer that they have credible fear of persecution. If the officer is not convinced that person can apply for asylum and ask to see an Immigration Judge. Such a person then will be taken from the airport to INS detention where the Immigration Judge would see him, within a period of seven days. The INS detention may be in Canada or Mexico. If the Judge decides against the application for asylum an appeal can be made to the Board of Immigration Appeals within 30 days. The general rule for claiming asylum in US is that a person who is afraid of persecution in his home country has to be outside his home country to be able to apply for asylum. However, exceptions are made to the general rule and in country asylum proceedings are at times allowed.
A student in F-1 status after leaving his home country which then was a democracy gets reasons to apply for asylum if a coup breaks out in his country and democracy is replaced by dictatorship. Military regimes generally are very suspicious of students since they are more likely than others to stand up and protest against dictatorship. When they protest they are likely to be arrested, interrogated, tortured and even killed. In such case, students who have entered US on an F-1 Visa can apply for asylum status. If their applications for asylum are not granted they do not loose their student status.
Abuse of women, under the reason “membership in a particular social group” also gives a right to a woman to apply for asylum. If a woman in her home country is abused by her husband and if the Government of her home country has failed to give protection to her, despite her trying hard to get one, and has declined to give any protection and on the contrary has issued orders preventing her from leaving her home country, such a woman would be illegible to obtain an asylum in US. Female gentile mutilation or a well found fear of it in the near future would provide a basis for an asylum claim. The birth limitation policy of a country and forcing one to abort or undergo sterilization would also be a case of obtaining asylum. However, the new law of US restricts to 1000 persons in a year from all over the world to avail of asylum for this reason.
The request for asylum in the United States is to be made in Form I-589 by providing biographic information and submitting two samples of finger print charts and two identical coloured photographs. There is no fee payable for the application for asylum. Five months after submitting the request for asylum in the United States, application for employment authorization can be made which would be cleared within a period of 30 days. Asylee’s spouse and unmarried children under the age of 21 can join the asylee by making an asylee relative petition. An asylee can after one year
submit an application for green card. People who have not suffered past persecution in a country are also eligible as asylee if they have a genuine belief that they will be subject to persecution in future.
Mr. Sudhir Shah of Sudhir Shah & Associates, Advocates & Notary, Mumbai, India is the Indian Member of Global Chain of Immigration Attorneys.