ASYLUM AND WITHHOLDING OF REMOVAL

I.       Introduction

II.     Authorities

III.   Key Considerations

IV.   Standard for Asylum

V.     Overview of Asylum Process

I. INTRODUCTION
This article presents an overview of the legal standard and filing procedure for application for asylum and withholding of removal. The government has proposed regulations that would change the showings necessary for past persecution and country-wide persecution. As of this writing these regulations are not final, but practitioners should check on their status in the future.

II. AUTHORITIES

A. INA

1. INA § 101(a)(42)(A), 8 USC § 1101(a)(42)(A)
This section defines the term "refugee."
2. INA § 208,8 USC § 1158

This section presents the authority to apply for asylum, time limits for filing, and other bars to asylum. It also discusses the grant and termination of asylum status, employment authorization, the consequences of filing a frivolous application, and procedures for filing an application.
3. INA § 235(b)(I), 8 USC § 1225(b)(I)

This section discusses the procedures for expedited removal of asylum-.seekers arriving at ports of
entry with false documents or no documents who must show a credible fear or persecution.

4. INA § 241(b)(3), 8 USC § 1231(b)(3)
This section presents the authority of the Attorney General to withhold removal for people whose life or freedom would be threatened under certain circumstances.

B. Regulations
Section 8 CFR § 208 discusses both the legal standards and procedures for applying for asylum.

C. International Law
The primary international treaties protecting the rights of refugees are the 1951 United Nations Convention relating to the Status of Refugees and the 1967 United Nations Protocol relating to the Status of Refugees. The United States is a signatory to the UN Protocol, which incorporated Articles 2 through 34 of the UN Convention.

The Convention Against Torture also offers protection to people facing torture if returned to their countries. Under Article 3 of the Torture Convention the United States has agreed not to return a person to a country where he or she could be tortured. The INS and EOIR published interim regulations establishing a procedure for Torture Convention claims, which can be raised on INS Form I -589 , which is the application for asylum and withholding of removal.

[ Go back to top of page ]

III. KEY CONSIDERATIONS

A. Definition of Refugee
The Immigration and Nationality Act establishes a procedure for applying for asylun1 in the United States. A person is eligible for a discretionary grant of asylum if he or she has suffered past persecution or has a "well-founded fear of persecution" on account of race, religion, nationality, membership in a particular social group or political opinion:

Any person who is outside any country of such person's nationality or, in the case of a person having no nationality , is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of, that country 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.

In adopting the Refugee Act of 1980, Congress intended to conform United States refugee and asylum law with the UN Convention and Protocol.
In 1996, Congress expanded the definition of refugee to state specifically that a person who has undergone or fears a "coercive population control program" (such as forced abortion or sterilization) has shown past persecution or a well-founded fear of persecution on account of political opinion.

One significant new requirement, effective April 1, 1997, is that an asylum seeker must file for asylum within one year of arrival in the United States. This requirement is discussed in more detail below.

B. Withholding of Removal
The law prohibits the deportation or removal of anyone whose life or freedom would be threatened in his or her home country on account of one of the same five grounds necessary for asylum. The INA provides as follows:

The Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the individual's race, religion, nationality, membership in a particular social group, or political opinion.

This provision applies to proceedings that began after April 1, 1997. It is substantially similar to INA § 243(h) for withholding of deportation, prohibiting the INS from deporting anyone whose "life or freedom would be threatened" due to one of the same five grounds applicable to asylum claims.

The one-year deadline for applying for asylum does not apply to applications for withholding of removal. Thus, even more than one year after arrival, a person whose life or freedom is in danger could still file for withholding of removal.

Withholding of removal implements Article 33 of the UN Convention providing for non-refoulement to a country where a person's life or freedom would be threatened. Withholding of deportation or removal requires that persecution be more likely than not. For withholding of deportation or removal, a person must show a "clear probability of persecution," which is more than a 50% likelihood of persecution.

The "clear probability" standard for withholding of removal is higher than the standard for asylum, which requires only a "reasonable possibility" of persecution. If an applicant meets the higher standard, withholding of deportation or removal is mandatory , compared to asylum, which is discretionary .There are several bars to withholding of removal. These include:

(1) persecution of others;

(2) being a danger to the community after having been convicted of a particularly serious crime;

(3) serious reasons to believe the person has committed a serious nonpolitical crime outside the United States; and

(4) reasonable grounds to believe the person is a danger to the security of the' United States. A person convicted of an aggravated felony ( or felonies) for which he or she received an aggregate sentence of at least 5 years' imprisonment is considered to have committed a particularly serious crime. For further discussion of particularly serious crimes, see discussion below. A person engaged in terrorist activity as described in INA § 237(a)(4)(B) is deemed to be a danger to the security of the United States.

A person applying for asylum does not need to file a separate application for withholding of deportation or removal since an application for asylum automatically constitutes an application for withholding of deportation or removal.

[ Go back to top of page ]

IV. STANDARD FOR ASYLUM

A. Definition of Persecution

Persecution encompasses a broad range of acts. It includes the infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim. Serious violations of basic human rights constitute persecution. For example, detention coupled with physical torture constitutes persecution. So does rape. The definition of persecution does not, however, require a subjective intent to punish or harm the victim. Persecution may also include severe economic deprivation threatening an individual's life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution. Persecution does not, however, include legitimate prosecution. Although fear of civil strife is not a basis for asylum, harm inflicted during the course of civil strife may constitute persecution.

The persecutor may be either the government or a group or individual that the government is unable or unwilling to control.

B. Country Wide Threat
While the Act does not explicitly require a showing of country-wide persecution, the Board of Immigration Appeals (BIA or Board) requires that an applicant show that the risk of persecution exists country-wide unless it would be unreasonable to relocate to another part of the country. The Ninth Circuit has held, however, that country-wide danger exists in any case in which the persecutor is a governmental agent. In that case, the court stated: "It has never been thought that there are safe places within a nation when it is the nation's government that has engaged in the acts of punishing opinion that have driven the victim to leave the country." The Ninth Circuit has also held that "there is no burden on the applicant to show that his past experience reflected conditions nationwide. "The Fifth Circuit has held along similar lines.

Ways to address whether a threat exists country-wide include consideration of the intent or ability of the persecutor to act nationwide. In addition, it is relevant to consider the size of the country , which might make it impossible to be safe anywhere.

Note: The government has issued proposed asylum regulations on internal relocation that would require an applicant to show country-wide harm. There are no final rules in effect yet. See 63 Fed. Reg. 31945 (June 11, 1998)

C. Past Persecution

Upon a showing of past persecution, a person has met the definition of a "refugee" and is eligible for a discretionary grant of asylum. Once a showing of past persecution establishes eligibility for asylum, a showing of a well-founded fear of future persecution is relevant to the exercise of discretion to grant asylum under the asylum regulations. The regulations state, however, that a showing of past persecution creates a presumption that the applicant has a well-founded fear of future persecution. The burden then shifts to the INS to show by "a preponderance of the evidence" that conditions in the home country "have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted. "

Even with this showing of changed conditions, the applicant may still receive a grant of asylum if he or she "has demonstrated compelling reasons for being unwilling to return to his country of nationality or last habitual residence arising out of the severity of the past persecution." Using a somewhat similar analysis, the Board in Matter of Chen, granted asylum for humanitarian reasons to a man who with his family suffered relocation and harsh treatment during the Cultural Revolution in China but after the Cultural Revolution was allowed to return to the city where he previously lived and was under no continuing threat of persecution anywhere in the country .Similarly, the Board granted asylum to an Afghani supporter of the Mujahidin who had been tortured for three months and then imprisoned for ten more months in deplorable conditions under the Communist regime, even though conditions had now changed and the Mujahidin had deposed the Communists and set up its own government. Many courts, however, require past persecution to be extremely severe before granting asylum in these circumstances.

Note: The government has issued proposed regulations that would make winning asylum more difficult than before for people who have suffered past persecution. As of this time, there are no final rules in effect. See 63 Fed. Reg. 31945 (June 11, 1998).

The First Circuit holds that although the adjudicator may take official or administrative notice of changed country conditions, she must provide the asylum-seeker with notice and an opportunity to respond.

D. Well-Founded Fear of Persecution
If a person has not suffered past persecution, he or she is still eligible for asylum based on a fear of future persecution. There is both an objective and subjective component to a well-founded fear of persecution: a person must have a subjectively genuine fear and the fear must be objectively reasonable. This means that a person must express a subjective fear of returning. It also means that there must be an objective basis for that fear. Documentation and expert testimony on conditions in the country , including human rights violations and harm to people similarly situated to the applicant, are essential to this showing.

Elements of proof in an asylum claim are that the applicant has "a belief or characteristic a persecutor seeks to overcome in others by means of punishment;" "the persecutor is already aware, or could become aware," of that belief or characteristic; and the persecutor has the "capability" and the "inclination" to punish the applicant.

To establish a well-founded fear of persecution, an applicant need only show that persecution is a "reasonable possibility ." Persecution need not be a certainty. The asylum regulations are explicit that an applicant has a well- founded fear of persecution if "there is a reasonable possibility of actually suffering such persecution." In certain circumstances that means that someone with only a "one in ten" chance of persecution may be eligible for asylum. In addition, a person need not be "singled out" for persecution if there is a "pattern or practice. ..of persecution of groups of persons similarly situated to the applicant." A person may also receive a grant of asylum if he or she suffered past persecution.

E. Persecution on Account of One of the Five Statutory Bases

1. "On Account of" Standard
The feared persecution must be "on account of' one of the five bases in the statute: race, religion, nationality, membership in a particular social group or political opinion. The phrase "on account of' has received specific attention in judicial decisions. For example, even if a person fears being tortured if returned, the torture must be "on account of' one of these five bases, and not on account of another reason, such as criminal prosecution or personal disputes. The Board has recognized, however, that persecutors may have mixed motivations for persecution and has required an applicant only to submit evidence from which it is reasonable to believe that the harm was motivated, at least in part, by one of the five bases. An applicant may provide direct or circumstantial evidence of such motivation. However, the Board has interpreted the "on account of' standard harshly to deny asylum. Numerous federal courts have looked broadly at the circumstances surrounding the persecution to find that it was "on account of' one of the grounds in the Act.
2. Political Opinion
Political opinion may be the actual political opinion that a person holds or the political opinion imputed to that person by the persecutor, whether or not the person holds that political opinion. For example, harm to family members may establish a claim to asylum where the applicant fears that the persecutor would seek to harm him based on his association with his family and the opinion imputed to him from his family membership.
3. Membership in a Particular Social Group
Social group is defined as a group which shares "a common, immutable characteristic." Courts have recognized the family as a social group upon which a fear of persecution may be based. Thus, if a person is a member of a family that has been persecuted, he may be able to raise an asylum claim on that basis.

A developing area of the law is recognition of persecution or severe discrimination of women on the basis of gender. In May 1995, the INS issued guidelines that recognize and assist adjudication of gender-based asylum claims. The Board granted asylum to a woman fearing female genital mutilation (FGM) if returned to Togo, holding that FGM constitutes persecution and that she was a member of a group of young women of her particular tribe who had not had FGM and opposed it. The Board also granted asylum to a Haitian activist whom soldiers " gang raped for her support of President Aristide after the military coup. Some , Courts have recognized a social group of women who fear persecution based on membership in a group that refuses to conform to Islamic norms of behavior.
These developments have led some judges to grant asylum to women who have suffered domestic violence. An immigration judge recognized a social group of "women who espouse Western values and who are unwilling to live their lives at the mercy of their husbands, their society , their government," and accordingly granted asylum to a Jordanian woman abused by her husband for three decades.
Also gaining recognition in asylum law is persecution on account of sexual preference.
4. Religion
Persecution on account of religion is another basis for asylum. For example, persecution experienced or feared due to Jewish heritage constitutes a claim based on religion.
5. Nationality
Another basis for asylum is nationality, which includes not just citizenship, but membership in a linguistic or ethnic group, and may overlap with race. It also may overlap with religion, as in the case of Jewish heritage.
6. Race
Persecution on account of race is also a basis for asylum. This basis may, as well, overlap with other bases.

F. Mandatory Grounds for Denial or Inadmissibility
I. Persecutor of Others
A person who has assisted in the persecution of others cannot meet the definition of a refugee.
2. Conviction of a Particularly Serious Crime
The Attorney General may not grant asylum if the person, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." Most courts hold that there is no need for a separate determination of dangerousness to the community if a person is convicted of a particularly serious crime. In most cases the determination of what is a particularly serious crime requires an examination of the underlying factors.

A person convicted of an aggravated felony is automatically considered to be convicted of a particularly serious crime. The definition of aggravated felony includes murder, rape, sexual abuse of a minor, drug trafficking, explosives or firearms trafficking, money laundering, a theft or burglary offense with a term of imprisonment of at least one year, a crime of violence with a sentence of at least one year, and numerous other crimes. Thus, for example, possession with intent to distribute a controlled substance, such as cocaine, is considered an aggravated felony because it involves drug trafficking.
The term "aggravated felony" encompasses numerous other crimes, including but not limited to: trafficking in false documents; racketeering for which a sentence of at least one year may be imposed; alien smuggling; engaging in the business of prostitution or slavery; spying; child pornography; fraud or tax fraud where the loss exceeded $10,000; commercial bribery , counterfeiting or forgery with a sentence of at least one year; not showing up for prison if the underlying offense is punishable by at least five years; and not showing up for a felony charge punishable by at least two years. The actual definition contains additional crimes and should be consulted. Attempt or conspiracy to commit such acts are also included, as are offenses under state, federal or foreign law. Since these provisions have various time limits on sentencing and dollar amounts, it is important to research the conviction to see if it actually is an aggravated felony.

A person with an aggravated felony conviction may still apply for withholding of deportation unless sentenced to an aggregate term of at least five years' imprisonment. Otherwise, conviction of an aggravated felony constitutes a particularly serious crime, which bars a grant of withholding of removal. There is a narrow exception for people who were in proceedings prior to April 1, 1997. The Attorney General may withhold deportation of a person even if convicted of a particularly serious crime "to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees."

Note: There is another possibility for people with criminal bars to asylum and withholding of removal --the Convention Against Torture. Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment prohibits deporting a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The INS and EOIR have published interim rules on raising a Torture Convention Claim. See 64 Fed. Reg. 8477 (effective March 22, 1999).

3. Firm Resettlement

A person may not receive a grant of asylum if he or she was firmly resettled in another country. The regulations define "firm resettlement" to include "an offer of permanent resident status, citizenship, or some other type of permanent resettlement" under certain conditions explained at 8 CFR § 208.15. Firm resettlement is not, however, a bar to withholding of removal.
4. National Security Risk.
Similarly, a person may not receive a grant of asylum if there are "reasonable grounds" for regarding him or her as a "danger to the security of the United States.
5. Serious Non-Political Crime
Another bar to asylum is "serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States" prior to arrival.

6. Terrorist Activity
Another mandatory bar is against people inadmissible or removable for terrorist activity unless the Attorney General determines "that there are not reasonable grounds for regarding the alien as a danger to the security of the United States." This ground is extremely broad and may possibly apply to any activity supporting a terrorist organization although the interpretation of terrorism should be limited to violent acts against noncombatants.
7. Safe Third Country
The act also bars a person from applying for asylum if the asylum seeker "may be removed, pursuant to a bilateral or multilateral agreement, to country ...in which the alien's life or freedom would not be threatened" on account of one of the five grounds and where the person "would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection." Implementing this provision requires a treaty or agreement with each country to which the United States would attempt to remove people who are not citizens of that country .The United States does not currently have any treaties to that effect with any other country .
8. Previous Asylum Application
The act also prevents a person from applying for asylum if he or she previously applied for asylum and was denied. There are two exceptions: (1) "changed circumstances which materially affect" an applicant's eligibility for asylum; and (2) "extraordinary circumstances relating to the delay in filing an application within the period specified."

G. Discretionary Denials
Granting asylum is discretionary even after a person has shown past persecution or a well- founded fear of persecution. The adjudicator may consider other factors in making the discretionary decision to grant asylum, such as an applicant's use of fraud to enter, criminal record, and good moral character.

[ Go back to top of page ]

V. OVERVIEW OF ASYLUM PROCESS

A. One- Year Filing Deadline
An asylum seeker must file an application for asylum within one year of arrival in the United States. This provision became effective on April , 1997. There are only two limited exceptions to this rule: (1) "changed circumstances which materially affect" an applicant's eligibility for asylum; and (2) "extraordinary circumstances relating to the delay in filing an application within the period specified." The regulations provide examples of such circumstances.

B. Penalty for Frivolous Application
A non-citizen who knowingly makes a frivolous application for asylum, after receiving notice of the consequences of doing so, is "permanently ineligible for any benefits under the [immigration law]."

C. Expedited Removal
People arriving at airports and other ports of entry with false documents or no documents face expedited removal from the U. S .An INS inspector interviews these people upon arrival and removes them unless they "indicate either an intention to apply for asylum under section 208 or a fear of persecution." If they indicate a desire to apply for asylum, the INS refers them to an INS asylum officer for an interview . At that interview, they must show a "credible fear of persecution." If they do not do so, INS may order them removed from the United States without further hearing. An immigration judge within seven days may review an INS decision that the person lacks a credible fear. The Attorney General may also apply these procedures to people who have not been admitted or paroled unless they have been continuously physically present in the United States for the previous two years. There is an exception to expedited removal for citizens of a Western Hemisphere country with whom the United States does not have full diplomatic relations who arrive by aircraft at a port of entry (i.e., Cubans).

A "credible fear" means that "there is a significant possibility , taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208."

[ Go back to top of page ]