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Mandatory Grounds for Denial
There are several statutory grounds requiring a mandatory denial
of an application for political asylum. Those grounds are as
follows:
- the Attorney General determines that an alien was ''firmly
resettled'' in another country before arriving in the United
States, he or she cannot obtain asylum;
- the alien ordered, incited, assisted or otherwise participated
in the persecution of another person on account of race,
religion, nationality, membership in a particular organization,
or political opinion;
- the alien was convicted of a ''particularly serious crime
and constitutes a danger to the community of the United
States;''
- there are serious reasons to believe that the alien committed
a serious nonpolitical crime outside the United States;
- there are reasonable grounds for regarding the alien as
a danger to the security of the United States; or
- the alien is inadmissible because of specified terrorist
activities, unless the Attorney General determines that
the alien is no longer a danger to the security of the United
States.
Overview of Asylum Process
Except under limited circumstances, an application for asylum
must be made within one year of the applicant’s arrival in the
United States. An application for asylum should not be made
lightly. An applicant who knowingly makes a frivolous application
for asylum after receiving notice of the consequences for doing
so is permanently ineligible for benefits under the Immigration
laws.
An asylum application can arise in three contexts:
- an affirmative application, in which an alien in valid
nonimmigrant status applies for asylum with the Immigration
and Naturalization Service (INS);
- a defensive application filed with an IJ in response to
action taken against the alien; and
- in response to expedited removal proceedings.
The process of filing an asylum application differs slightly
in each context. In general, the application process begins
with a formal application to the Attorney General for asylum
protection. A mistake in the formalities and timing of an application
can have a significant negative impact on the outcome. In the
affirmative and expedited removal contexts, a specially trained
asylum officer initially reviews the application. Each potential
asylee is typically granted a non-adversarial interview before
a determination is made by the asylum officer. As detailed below,
the asylum officer's decision may be subject to limited administrative
and judicial review, depending on the circumstances that gave
rise to the application.
Noncitizens arriving at a port of entry (ie., airport) without
documents or with false documents are subject to expedited removal.
These individuals are interviewed by an immigration inspector
and removed unless they indicate an intention to apply for asylum
or that they have a fear of persecution upon return to their
countries of origin. Such applicants are referred to an asylum
officer and interviewed to determine whether they have a credible
fear of persecution. If there is a finding of a credible fear
of persecution, the alien's asylum claim proceeds as a normal,
non-expedited asylum application. If the asylum officer fails
to find a credible fear of persecution, the alien can pursue
a single level of review by an IJ. This review must be completed
within seven days after the asylum officer's decision. In most
instances, the IJ's ruling is final.
Once an individual has been admitted into the United States,
they may file for asylum with the appropriate regional service
center. Aliens who are currently in removal proceedings must
file their asylum applications directly with the immigration
court that has jurisdiction over their case.
Employment Authorization
Asylum applicants can only apply for employment authorization
after 150-days have elapsed since filing the asylum claim, or
upon the grant of asylum, whichever occurs first. The clock
begins to run only when the INS receives a ''complete'' asylum
application. The purpose of the 150-day “clock” is to make it
difficult for most asylum applicants to get work authorization
and thereby discourage frivolous applications. Asylum applicants
who have been convicted of an aggravated felony and those who
fail to appear for a scheduled interview before an asylum officer
or IJ are barred from receiving work authorization. In the event
of failure to appear, the applicant may be eligible for employment
authorization where “exceptional circumstances” for failure
to appear can be shown.
Travel
Asylum applicants may not travel abroad while their asylum application
is pending unless they first obtain permission to travel from
the INS or advance parole. An asylum applicant who leaves the
United States without first obtaining advance parole is also
presumed to have abandoned his or her asylum application. Aliens
who leave the United States pursuant to advance parole are presumed
to have abandoned their asylum applications if they return to
the country of claimed persecution, unless they can establish
''compelling reasons'' for their travels there. Once asylum
is granted, asylee’s require a special travel document called
a re-entry permit in order to travel abroad.
Interview
The asylum interview is generally non-adversarial. In making
their decision to grant or deny asylum, the asylum officer will
rely on the following:
- the testimony of the applicant;
- any supporting documentation provided by the applicant;
- comments from the State Department;
- country reports, advisory opinions, and other information
readily available from the INS Resource Information Center;
and
- information obtained from U.S. government officials and
other credible sources, such as international organizations,
private voluntary agencies and academic institutions.
It is the duty of the INS and/or the IJ to introduce any information
and/or documentation relevant to the particular case. This is
because the INS is generally in a better position than the applicant
to obtain such information.
An asylum officer may grant an application in the exercise of
discretion to an applicant who qualifies as a refugee, unless
prohibited by the mandatory grounds of denial set out above.
Normally, if the alien appears to be removable, the asylum officer
will either grant asylum or refer the case to an IJ. However,
if the asylum applicant is in valid nonimmigrant status at the
time the application is decided, the asylum officer can grant
or deny the application, but cannot refer it to an IJ.
If asylum is granted and not subsequently terminated, the asylee
may apply for lawful permanent residence one year from the date
asylum was granted. The asylee may petition for their spouse
and minor children to be admitted in the same status unless
these family members fall within any of the mandatory denial
grounds.
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