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Asylum Law and Process

Asylum Law and Process. Jim Morsch, Partner and Pro Bono Director Butler, Rubin, Saltarelli & Boyd LLP. Asylum: Definition.

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Asylum Law and Process

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  1. Asylum Law and Process Jim Morsch, Partner and Pro Bono Director Butler, Rubin, Saltarelli & Boyd LLP

  2. Asylum: Definition • “[A]ny person who is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and 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.” 8 U.S.C. §1101(a)(42)(A). • International standard: UN Protocol Relating to the Status of Refugees, Art I(2)

  3. Domestic Law • Immigration and Nationality Act (INA) / Title 8, United States Code, Aliens and Nationality • INA § 101(a)(42)(A) defines refugee • INA § 208 covers asylum • Title 8, Code of Federal Regulations, Aliens and Nationality • Case Law • Supreme Court • Seventh Circuit • Board of Immigration Appeals (BIA)

  4. Asylum: Elements • “Well Founded Fear” • of “Persecution” • Based on following factor(s) • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group • Nexus • Government is persecutor or cannot control persecutors

  5. “Well Founded Fear” • “reasonable probability” • Lower than preponderance of the evidence • Has objective and subjective components • Applicant must have fear (subjective) • Fear must be reasonable, i.e., “well founded” • “one in ten” probability • INS v. Cardoza-Fonseca, 480 U.S. 421 at 431

  6. “Well Founded Fear” Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) • Possesses belief or characteristic persecutor seeks to overcome • Know or likely to become aware of characteristic • Capability to punish • Inclination to punish

  7. Cases based on Well Founded Fear • Look to past incidents and country conditions to show Mogharrabi standards • Credibility of applicant key • Experts are important in these cases • Remember your burden: “reasonable possibility”; can be as low as 10% risk of harm

  8. “Persecution” • Poverty, victim of crime, bad luck not enough • Behavior that “threatens death, imprisonment, or the infliction of substantial harm or suffering.” • Sayaxing v. INS, 179 F.S3d 515, 519 (7th Cir. 1999). • “Hallmarks” of persecution are: • detention, arrest, interrogation, prosecution, imprisonment, • illegal searches, confiscation of property, surveillance, beatings, or torture • Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995)

  9. Past Persecution Cases • Legal presumption of future persecution • 8 C.F.R. § 208.13 • DHS can rebut with proof by a preponderance of the evidence of changed circumstances or reasonableness of internal relocation

  10. “On Account Of” • Must establish nexus between well-founded fear of persecution and … • …at least one of the five protected grounds • Race • Religion • Nationality • Political Opinion • Membership in a Particular Social Group

  11. Race, Religion, Nationality • Race: Broad meaning • Religion • Nationality • Not just citizenship • May be ethnic or linguistic group • May overlap with race • e.g., Bosnian-Muslim [religion, nationality]; Dinka Sudan [race, nationality, religion]

  12. Political Opinion • Actual • Imputed • e.g., daughter of a political activist persecuted for the activities of her father • Need to show persecutor knew of political opinion

  13. Membership in a Particular Social Group • “common, immutable characteristic” • Matter of Acosta, 19 I&N Dec. 211, 233 (BIA 1985) • “members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences” • e.g., gay male persecuted for his sexual orientation

  14. What is your legal theory? • Past persecution • Single incident • Cumulative • Well founded fear of future persecution • Minor past incidents that don’t rise to past persecution but indicate risk • Change in status/country conditions that give rise to new risk (refugee sur place) • Favorable equitable considerations

  15. One-Year Filing Deadline • MUST file application within one year of most recent arrival to the United States • Entry October 5 -- Application by October 4 • INA § 208(a)(2)(B); 8 C.F.R. § 208.4 (a) • Limited Exceptions • INA § 208(a)(2)(D); 8 C.F.R. §208.4(a) • Changed circumstances • Exceptional circumstances (e.g. illness, incapacity)

  16. Withholding of Removal • Alternative remedy; INA§241(b)(3)(A) • Same statutory definition as asylum (“refugee”) • Heightened burden of proof • “more likely than not” = >50% • Available if missed 1 yr. filing deadline • Non-discretionary, but no pathway to residency

  17. UN Convention Against Torture • Alternative remedy; 8 C.F.R. §208.16 • Definition “Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information of a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, where such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

  18. Convention Against Torture • Burden of proof • “More likely than not” = >50%

  19. The Benefit of Skilled Advocacy • Average success rate of applicants through NIJC’s pro bono program: 90% • National denial rates: • With representation: 64% • Without representation: 93%

  20. Key Law • 8 U.S.C. § 1101(a)(42)(A) (refugee definition) • 8 C.F.R. § 208.13 (asylum provisions) • INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) • Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) • UNHCR Handbook on Procedures and Criteria for Determining Refugee Status

  21. Follow-up Contacts • Jim Morsch (312) 444-9660, jmorsch@butlerrubin.com • Mony Ruiz-Velasco, National Immigrant Justice Center, (312) 660-1306 mruizvelasco@heartlandalliance.org

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