Can my asylum case ever be cancelled?

Yes.  Unless you have obtained a “green card” or lawful permanent resident status, you could lose your asylum status as well as the derivative asylum status given to your spouse and children if:

  1. The U.S. government has evidence that there was fraud in your asylum application.
  2. There has been a “fundamental change” in your country so that the reason you were afraid to return is no longer present.
  3. You have been convicted of a crime that meets the definition of “aggravated felony.”
  4. There exists another country which will accept you for asylum or you have obtained a new nationality.
  5. You have returned to your home country or you have used your country’s protection. For example, traveling on your home country’s passport or renewing it.

Asylum is not a right to remain permanently in the U.S. and for this reason it is important to apply for a “green card” or lawful permanent resident status as soon as you are eligible.  If you are facing termination of your asylum status, is important to consult with an immigration attorney.

What is a “frivolous” asylum application?

People often want to know “what does it mean when USCIS says an asylum application was frivolous?”

Under the federal regulations, asylum seekers can get in trouble if they file a “knowingly frivolous” application.  Knowingly frivolous means that one or more important claim in the application is false.  It could also mean claims of asylum where there was positively no credible fear of persecution back home.

The bar on frivolous applications was put into place because people had been submitting completely false asylum applications.  There are many reported cases of people claiming to have done heroic things in their home country in the hopes of never being sent back and, upon investigation, the claims were found to be false.

One such case involved a man named Biao Yang in China. Mr. Yang arrived in Chicago one day and immediately told officials that he had fled China because “family planning authorities” were out to kill him because he had (1) impregnated his girlfriend, (2) scuffled with an abortionist sent to kill his unborn child and (3) escaped China.  The immigration judge, after several hours of testimony and cross-examination, decided that Mr. Yang had lied.  His asylum case was denied.

In situations like this, if the immigration judge or the Board of Immigration Appeals concludes that you had fabricated portions of your asylum claim, very serious consequences then occur.  Specifically, you can be barred from ever seeking any immigration benefit in any form in the U.S.  A very serious consequence indeed.

This is another reason why you must be thorough, complete and totally honest when filing for asylum.  Having your case denied would not be the worst outcome if you are found to have filed a frivolous application.

Hope this helps you understand this important concept.

Is the asylum interview supposed to be an adversarial interrogation?

Federal regulations require that an asylum interview not be adversarial.  That means that the officer is not supposed to be battling with, nor antagonizing, the person being interviwed.

Several good reasons exist for this approach.  First, the interview is the first and best opportunity for the asylum seeker to make their case.  If they are intimidated or yelled at by the asylum officer, they will not be able to thoroughly present their case.

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If the asylum officer makes a mistake and denies a case that should have been approved, very real world consequences may arise – the person may be deported to a place where he or she would be killed.  They could also be placed in removal proceedings which is not a pleasant experience.

The purpose of the interview is two-fold: (a) gather information and (b) disseminate information.  The asylum officer has the affirmative duty to “elicit all relevant and useful information bearing on the applicant’s eligibility” for asylum.  This means more than simply asking questions – it means having a dialogue without any pre-conceived notions of what the outcome should be.

The asylum officer should also disseminate or provide information regarding the process.  Asylum is an intimidating and complicated set of procedures.  One role the officer has is to make sure the person going through the process has a good understanding of what is happening.

Unlike in deportation court, there is no one at the immigration interview arguing that the alien should be deported or that asylum should be granted.  There is no formal cross-examination and the officer is “not an advocate for either side; rather the asylum officer is a neutral decision-maker.”

We hope this information helps you understand what an asylum interview is supposed to be like.  If you have questions or concerns regarding an updcoming asylum case or filing, please be sure to call as at (314) 961-8200.

How long do I have to file my asylum application with USCIS?

Most people who come to our office to talk about asylum are unaware of the strict filing deadlines that govern asylum cases.  Since 1998, the rule at USCIS has been that an applicant for asylum must file within one year of his or her arrival into the U.S.

The one-year period is calculated from the date of the last arrival.  The day of arrival does not count – the first day is the day after the last arrival.  The filing date is the date that USCIS receives the I-589 asylum application.

It is your burden to show that you met the one-year deadline.  You have to establish timely filing by “clear and convincing” evidence.  You do this through testimony and through documentary proof of your last arrival.

If the asylum office has concerns about whether or not you filed within one year, you will still have your asylum interview.  However, your affirmative application for asylum (which is really your best chance for asylum), will be denied.

Your case will be sent to the immigration court, where you will face deportation, but may raise asylum as a defense to being sent overseas.

One exception for this rule is if there are “changed circumstances which materially affect his or her eligibility for asylum, or extraordinary circumstances relating to the delay in filing.”

Here are some examples of “changed circumstances”:

  • changed conditions in the applicant’s country of nationality
  • changes in applicable U.S. law
  • changes in the applicant’s personal circumstances, such as recent political activisim, religious conversion, etc.
  • the ending of the applicant’s relationship to the principal applicant in a prior asylum application.

The only other exception to the deadline is for “extraordinary circumstances,” which are events or factors in the applicant’s life which cause them to miss the filing deadline.  To prove this exception, the asylum applicant must:

  • show the extraordinary circumstance;
  • establish that the extraordinary circumstance caused the delay in filing;
  • not have intentionally created the extraordinary circumstance, through action or inaction, for the purpose of causing the delay; and,
  • must have filed within a “reasonable” period given the circumstances that related to the failure to timely file.

Extraordinary circumstances usually involve serious injury, death of a loved one or other similar situations.

We hope this helps you understand the one-year deadline and the narrow exceptions that apply.  If you have any questions, please give us a call at (314) 961-8200.

Committed to your success in the asylum process.

What does USCIS mean when they talk about “persecution” of people applying for asylum?

People often call our office to talk about asylum.  But they are not sure what the government considers to be “persecution” when figuring out whether or not someone would be persecuted if they returned home.

In asylum cases, persecution means harm or suffering inflicted upon an individual in order to punish the individual for possessing a belief or characteristic that the person causing the harm or suffering does not like.

The intent of the person inflicting the harm is not relevant.  The true question for the immigration officer is whether or not the harm rises to a serious enough level to equal persecution.

Persecution can mean more than physical harm or the threat of physical harm if it rises to a serious enough level.  Non-physical harm includes deliberately denying someone’s liberty, food, housing, employment or other essentials of life.

Various courts have defined persecution as well.  One federal court in Chicago defined it as “infliction of suffering or harm for political, religious or other reasons that [the U.S.] does not recognize as legitimate.”

In order for actions to rise to the level of persecution, they must rise above the level of mere harassment.  Another federal court explained that for conduct to be persecution, it must “rise above unpleasantness, harassment and even basic suffering.”

There is no requirement that an individual suffer “serious injuries” for them to have suffered persecution.  At the same time, the existence or absence of physical injuries is a factor to be considered.

This discussion demonstrates just how important it is to frame your asylum application in the best way possible.  If you have any questions or need assistance with your own asylum application, please feel free to give us a call at (314) 961-8200.

Can I travel while my asylum case is pending?

Sometimes asylum cases take a very long time to process. The initial interview may be a year or more away. Asylum applicants sometimes get ansy about remaining in the U.S. for so long and ask us whether it would be okay for them to leave the country.

If you have an asylum case pending and are thinking about leaving the U.S., you need to think about a few things.

USCIS does not explicitly prohibit asylum applicants from leaving the U.S. while their application is pending. However, you must file an I-131 application for advance parole and have that application approved BEFORE you leave the U.S. If you leave the U.S. without obtaining advanced parole, you will most likely be deemed to have abandoned the asylum application and may not be able to reenter the U.S.

You should file your advanced parole application at least three months before you intend to travel. It usually makes sense to request advanced parole shortly after applying for asylum as you never know when you may need to leave the country quickly.

Leaving the U.S. should be avoided if at all possible. Even with a pending asylum application, if you have inadmissibility grounds – such as a visa overstay or criminal history – you may not be allowed to return.

Finally, the most important thing about asylum and travel is that you CANNOT return to the country that you are claiming in the asylum application would persecute you if you were to return. This would not only be fatal to the asylum application, but it would also open you up to a possible claim of immigration fraud.

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