By Attorneys Amanda C. Kwong & Nancy E. Miller
People seek to enter the United States for many different reasons. Some come to join family. Others come for economic opportunity. Still others come because they are fleeing persecution in their home country. Those who have a well-founded fear of persecution as a result of their race, religion, national origin, membership in a particular social group or political opinion may be eligible to apply for asylum. If it is granted, the asylee will be eligible to apply for a green card after one year. In addition, family members (spouses and under 21-year-old children) may also be able to obtain asylee status. The Child Status Protection Act may protect children who turn 21 during the adjudication process.
The asylum application is filed with United States Citizenship & Immigration Services (USCIS). If the applicant is not given an interview within 150 days from filing, s/he will be eligible to apply for work authorization which is officially called an Employment Authorization Document EAD). The applicant is not technically eligible for EAD until 180 days have passed from the date of the filing of the asylum application so once filed, the EAD application will be held until the full 180 days have passed. If the applicant seeks an extension of an interview or does anything else that causes a delay in the procedure, the EAD clock will stop for the period of the delay caused by the applicant. This will, of course, delay the ability to obtain the EAD.
Those seeking asylum must file the application within one-year of entering the United States. If they fail to do so, they may be ineligible for asylum but may be able to pursue relief called withholding of removal or relief under Article 3 of the Convention Against Torture. Withholding has a higher standard of proof (a clear probability of persecution on account of one of the five enumerated grounds listed above) and does not lead to a green card. Relief under Article 3 of the Convention Against Torture requires that the applicant show that it is more likely than not that he or she will suffer torture at the hands of or with the acquiescence of the home country government.
Two categories of exceptions to the one-year filing deadline exist – extraordinary circumstances or changed circumstances.
The extraordinary circumstances exception refers to events or factors directly related to the failure to meet the one-year deadline. The applicant must show that the circumstances were not intentionally created through action or inaction; that the circumstances were directly related to the person’s failure to timely file; and the delay was reasonable under the circumstances. They include severe illness to the applicant or a close family member (and include injury or illness resulting from the persecution), legal disability (being a minor or mental incapacity); ineffective assistance of counsel, maintaining lawful or TPS status or refiling after a timely filed application is rejected by USCIS.
The changed circumstances exception refers to circumstances that materially affect the applicant’s eligibility for asylum. This include a change in conditions in the home country, changes in the US law, activities of the applicant (such as converting to a different religion or becoming politically vocal in criticizing one’s home country), and aging-out or divorcing the primary applicant for asylum. Here also, the application must be filed within a reasonable time under the circumstances.
In both extraordinary circumstances and changed circumstances, the courts have held that filing more than 6 months after one is able to do so is not reasonable.
Various factors may render one ineligible for asylum even upon a showing of a well-founded fear of future persecution or a history of past persecution. One who has firmly resettled in a third country is not eligible for asylum. Nor is someone who has ordered or assisted in the persecution of others. One who has been convicted of a particularly serious crime or who the government reasonably believes has a committed a serious non-political crime is also ineligible for asylum. Aggravated felonies are particularly serious crimes for purposes of asylum ineligibility but not necessarily for withholding of removal. That test is more complex. And, one who the government believes is a danger to the security of the United States is also ineligible for asylum.
An asylee may lose that status under certain circumstances. Conviction of a crime of moral turpitude or an aggravated felony may result in the loss of asylee status. Returning to the country from which one sought and obtained asylum may also result in the loss of asylum.
One who fears returning to their home country should seek the advice of a knowledgeable and experienced immigration attorney to determine if they are eligible for asylum.