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Best Tips to Win
Green Cards Through Asylum
By Elizabeth R. Blandon, Esq.
Board Certified by Florida Bar - Immigration and Nationality Law
AV Rated Preeminent Attorney by Martindale-Hubbell
10.0 Superb Rating by AVVO
Member, American Immigration Lawyers Association
Asylee’s Daughter Blog
2853 Executive Park Drive, Suite 103
Weston, FL 33331
(Tel) 954-385-0157
Videos About Asylum are Found at:
www.Blandon-Law.com
Like Blandon Law on Facebook
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About the Author
Elizabeth R. Blandon has been practicing
immigration law for twenty years. The association of
lawyers of her state has certified her as an “immigration
expert.” Fewer than 100 lawyers have been honored with
this Board Certification.
The Martindale-Hubbell Peer Review Rating System
rated Ms. Blandon AV. This score – which is the highest
rating possible -- reflects the confidential opinions of both
judges and other attorneys regarding Ms. Blandon’s legal
ability and adherence to the highest level of professional
ethics. Clients, who publish anonymous reviews on the
website AVVO, also gave her the highest rating (10.0
Superb).
Marco Coello, a national Venezuelan hero who sought
political asylum, chose Ms. Blandon to represent him. They
are pictured below during a CNN interview.
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The American Immigration Lawyers Association
honored her article “Asylum for Atheists” as one of the best
magazine stories by an immigration lawyer.
She founded Blandon Law to help victims of abuse
make a life for themselves in the United States -- whether
they are victims of a person or a government. Clients live in
many different parts of the United States and are citizens of
over 80 countries. She also funds a scholarship award for
asylee and refugee students.
Ms. Blandon graduated from the University of
Pennsylvania Law School, considered one of the best in the
nation. Ms. Blandon speaks Spanish and French. Before
studying law, Ms. Blandon honed her writing skills at Boston
University where she earned two degrees, one in Literature
and another in Journalism.
The blog is named “The Asylee’s Daughter” because
her parents, who are Cuban, received exile in the 1960s.
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Table of Contents
CHAPTER 1 BENEFITS OF ASYLUM ........................................................... 8
OTHER BENEFITS FOR ASYLEES ..........................................................................11
CHAPTER 2 HOW TO WIN ASYLUM ...................................................... 13
FIVE PROTECTED GROUNDS...............................................................................15
Race and Nationality .................................................................16
Religion ......................................................................................17
Political Opinion ........................................................................18
Particular Social Group (PSG) .................................................................. 22
DEFINING THE PARTICULAR SOCIAL GROUP .....................................................25
CHAPTER 3 WHO DECIDES PERSECUTION? ......................................... 27
THE LEVELS OF REVIEW ......................................................................................28
SOME EXAMPLES OF PERSECUTION ...................................................................35
RELOCATION IMPOSSIBLE ...................................................................................38
CHAPTER 4 WHAT HARM DOES NOT COUNT ..................................... 40
CIVIL UNREST......................................................................................................40
CRIME .................................................................................................................41
DOMESTIC VIOLENCE .........................................................................................42
GANG VIOLENCE .................................................................................................43
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CHAPTER 5 WHAT DOCUMENTS DO I NEED? ..................................... 44
YOUR INVOLVEMENT IN PREPARING THE CASE ................................................ 45
DOCUMENTS TO IDENTIFY YOURSELF................................................................ 46
PROOF OF THE HARM YOU SUFFERED .............................................................. 48
PROOF OF NON-PHYSICAL HARM ..................................................................... 50
PROOF OF THE PERSECUTOR’S MOTIVE............................................................ 51
WHAT IF I CAN’T GET DOCUMENTS? ............................................................... 54
WHAT IF THE DOCUMENTS ARE WRONG? ....................................................... 55
CHAPTER 6 WHEN WILL MY CASE BE FILED? ...................................... 57
ONE-YEAR DEADLINE ......................................................................................... 59
FILING AFTER THE ONE-YEAR DEADLINE .......................................................... 60
DEADLINE FOR BENEFITS ................................................................................... 64
GENERAL PROCESS AT BLANDON LAW ............................................................. 67
CHAPTER 7 WHY WON’T THEY BELIEVE ME? ...................................... 70
CHAPTER 8 WILL MY CASE BE DENIED FOR OTHER REASONS? ....... 74
WORKING WITHOUT AUTHORIZATION ....................................................... 74
MANNER OF ENTRY. ........................................................................................ 74
CRIMINAL MATTERS ....................................................................................... 75
OTHER STRATEGIES IN THE EVENT OF DENIAL ......................................... 77
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Introdution
You’ve arrived in the United States. You know you
can’t return to your home country, but you are unsure how
to go about staying here. You don’t have work authorization
and you may not have a driver’s license. At this point,
though, you are just glad to be safe. You have few (or no)
family members in the United States and want desperately
to win your asylum case so you can get a green card.
However, you don’t know whom you can trust. And it seems
that the more questions you have, the more confused you
become with all the different responses you receive. One
thing you know for certain: you can’t afford to lose your
case because you’ll risk returning to danger.
You are still in your home country and realize you
can’t stay. Life has become unbearable. Those like you and
those you know have been fired or harmed. If others knew
everything about you, you might be killed. What is worse –
the police will not protect you. The idea of fleeing to the
United States calls like a whistle through the fog. Filing for
asylum will allow you to stay and work there legally.
Everyone on the Internet, however, seems to have a
different answer to your simple questions. One thing you
know for certain: when you arrive in the United States, you
can’t risk returning to where you came from.
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This book will answer many of your questions. The
information has been obtained over years of experience
practicing immigration law. Successful asylum clients
include the following:
•
A woman who escaped domestic violence in Iran
•
A woman who escaped an “honor killing” in Turkey
•
A man who escaped religious-based death threats in
India
Attorney Elizabeth Blandon and her team members
have the expertise and creativity to win difficult cases.
Although there is a one-year deadline for filing asylum,
Blandon Law has won cases despite filing years later. A
Honduran man from New York filed asylum four years after
entering the U.S. A Colombian woman filed asylum 15 years
after being carried over the border as an infant in the arms
of her mother. Both were successful.
Because you can’t return, read this information
and then contact Blandon Law for a private conference.
With proper advice and assistance from experienced
immigration attorneys, even the most difficult cases can be
won. This is not wishful thinking, but rather the voice of
experience.
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This book is exclusively about how foreigners IN THE
UNITED STATES can obtain asylum. Information on how
foreigners outside the United States can obtain refugee
status and benefits is available at http://www.unhcr.org/
Final Note: For ease of reference, I use the pronoun
“she” throughout this book to refer to an asylum applicant,
rather than “they” or “he.” Although international treaties
use the male pronoun, women make up most of the
population.
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Glossary of Terms
A.
Asylee – persons in the United States who have been
granted refuge due to a well-founded fear of persecution in
their homeland. The term also refers to the spouse and
children of such a person.
Authorized presence – period during which a foreign
national does not accrue time in unlawful status, as
permitted by the Department of Homeland Security.
Deferred action, appeals to the BIA, and consideration of
change of status applications are examples of such time
periods. Persons who have authorized presence are legally
present in the United States, for purposes of the
immigration laws.
B.
Board of Immigration Appeals – also known as the Board,
the BIA is an administrative appellate body within the
United States Department of Justice. Published decisions of
the Board are used as guidelines for Immigration Judges
deciding asylum cases.
C.
Citizen – a member of the United States, eligible to
participate in its government with rights such as holding
public office, voting in elections, and being eligible for
government jobs.
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Citizen and Immigration Services – also known as
Immigration, this is the agency that performs the
administrative functions previously performed by the
Immigration and Naturalization Service. It is an agency
within the Department of Homeland Security, granting
benefits such as asylum, work permits, legal permanent
residency, and naturalization.
Convention Against Torture – referred to as CAT, the
United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment is an
agreement signed by member countries to avoid torture
around the world. Persons who may be tortured in their
home country cannot be deported, even if their asylum case
is denied.
D.
Dual citizen – a person who owes allegiance to more than
one country. To obtain asylum in the United States, a dual
citizen must demonstrate that she will be harmed in BOTH
countries.
E.
Employment authorization – work permission issued by
the Citizenship and Immigration Service
F.
Foreign national – anyone who is NOT a citizen of the
United States is a foreign national. Although foreign
nationals may have entered through different methods and
have different ties to their communities, they must apply to
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the government if they wish to work and remain legally in
the United States. Thus, it is important to become a citizen.
G.
Green card – the government-issued identification card
issued to legal permanent residents
L.
Legal permanent resident – a foreign national allowed to
work and remain in the United States in a permanent status.
N.
Naturalization – the process by which a foreign national
becomes a U.S. citizen.
R.
Refugee – foreign nationals who are outside of the United
States and seek protection in a second country because of
harm suffered in their homeland.
Removal – prior to the passage of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, issuing
an order to return foreign nationals to their homelands was
known as deportation. Today, it is removal.
S.
Status – persons are deemed to be in status when
Immigration has formally approved their visa, application,
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or petition. The duration of status varies based on the
benefit granted.
T.
Temporary Protected Status – TPS provide foreign
nationals from designated countries a temporary stay of
removal and employment authorization for the designated
period and for any extensions
U.
UNHCR – The United Nations High Commissioner for
Refugees, established in 1950 by the United Nations General
Assembly to lead and coordinate international action to
protect refugees
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Chapter 1 Benefits of Asylum
The Refugee Act of 1980 adopted a refugee definition
modeled on (but not identical to) the Convention definition.
A person who satisfies the statutory definition may be
admitted as a refugee from abroad through the refugee
resettlement program, or, if already present in the United
States or at its borders, may be granted asylum.
Legal Permanent Residency
The most important reason a foreigner wants to win
an asylum case is that she can remain in the United States.
When the asylum case is approved -- either before U.S.
Citizen and Immigration Services or before an Immigration
Judge – the foreign national becomes an asylee. ONE year
after becoming an asylee, she may apply for legal permanent
residency.
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If the residency application is approved, she receives
an identification known as a green card. Legal Permanent
Residency gives foreigners a lawful basis both to live and to
work in the United States. Green card holders (lawful
permanent residents) are also eligible for more government
assistance programs, including, but not limited to, the
following:
•
lower tuition rate at state run colleges or
universities,
•
eligibility for certain loans, and Social Security
benefits.
Also, legal permanent residents can apply for
citizenship after five years. This is important because only a
U.S. citizen who is over 21 years of age can sponsor a parent
for a green card.
Work Authorization
An asylum applicant can file for work authorization 150
days after the asylum application is submitted to the
Citizenship and Immigration Service. Filing the asylum
application triggers a countdown referred to as “the asylum
clock.” Immigration will not issue a work permit until 180
days have passed on the asylum clock.
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To avoid granting work permits to undeserving
applicants, Immigration will attempt to decide on the
asylum application before the 150 days have passed. If the
case is denied before the 180 days, the work permit is not
issued.
If the case is denied, foreign nationals who are not in
status may have their cases referred to the Immigration
Court. Read more on that process in Chapter Four.
Although an asylum applicant can receive work
authorization while the case is pending in Immigration
Court, certain activities will stop the clock and thus can
impact when the work permit is issued.
For instance, if a foreign national applies for asylum
before an Immigration Judge, but then requests additional
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time to find an attorney, the asylum clock stops ticking. By
requesting additional time, the foreign nationals are forced
to wait before being eligible to apply for work authorization.
An experienced immigration attorney will explain
what actions the applicants should avoid so that they may
be eligible for work authorization as quickly as possible.
Driver’s License
An asylee is also eligible to apply for a driver’s
license. In Florida, even asylum applicants may obtain a
driver’s license. The requirements vary by state and are
usually available on the website of the Division of Motor
Vehicles.
Other Benefits for Asylees
Refugee Travel Document. Asylees can travel abroad
with a Refugee Travel Document, which is issued by the
United States. In that way, they do not need to rely on the
government of their homeland – which may not be willing to
assist -- to issue a passport. In addition, persons granted
asylum can petition for either their spouse or unmarried
children under the age of 21. This benefit applies to spouses
or children outside the United States who will then come to
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receive a legal permanent stay in the United States. Of
course, asylees should NOT travel to their home country.
Financial Assistance is available through the Office of
Refugee Resettlement (ORR). ORR funds and administers
programs to help refugees, asylees and other special
populations restart their lives in the United States. This
help includes short-term cash and medical assistance.
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Chapter 2 How to Win Asylum
Contrary to popular belief, asylum is NOT based on
the country of the applicant. A similar form of protection
which provides legal status and work permission – known
as Temporary Protected Status – is given to applicants
because they are from certain countries, but such is not the
case with asylum. In fact, Blandon Law has won asylum for
persons who are citizens of European countries.
Instead, asylum is granted to foreign nationals who
can demonstrate that they have been harmed (or will be
harmed if returned) “on account of” one of five protected
grounds. This means she can demonstrate she will be
harmed because of her race, religion, nationality, political
opinion, or membership in a particular social group. Each is
discussed with more detail below. Member countries of the
United Nations have agreed to protect those who have been
or will be harmed because of these characteristics.
These must be the PRIMARY, but not only, reason for
harm. Even if someone might also be harmed for other
reasons, she can still win asylum.
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The Asylum Puzzle
I like to think of an asylum case as a puzzle that we
build, piece by piece. The applicant must explain WHAT
significant harm happened to her, WHEN it happened,
WHERE it happened, and (most importantly) WHY it
happened. This last piece means that the applicant needs to
prove WHO will harm her if she returns to her country.
When all these pieces of information are clearly
provided and properly organized, the person reviewing the
case will see this picture: Because of her race, nationality,
religion, political opinion OR particular social group, the
asylum applicant will be in grave danger if she returns to her
home country.
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This book explains how to build that puzzle.
Importantly, I do not state that the asylum applicant will be
harmed if she returns. An asylum applicant only needs to
prove that there is a reasonable possibility that she will be
harmed. This means that, more likely than not, she will be
harmed if returned. In INS v. Cardoza-Fonseca, 480 U.S.
421 (1987), the Supreme Court explained that an asylum
applicant will win if the person weighing the evidence
believes there is more evidence that the asylum applicant
will be harmed.
Five Protected Grounds
An applicant needs to demonstrate that the feared
harm occurred – or will in the future occur – because of a
trait she possesses. These are traits that the asylum
applicant cannot change (race, nationality, particular social
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group) or should not be forced to change (political opinion,
religion).
The applicant will win asylum if she demonstrates
that the harm suffered occurred primarily on account of
this trait. There may be other reasons, too. For example, a
rich opponent of a government may be targeted both
because of her political opinion and her wealth and still
receive asylum. The police may refuse to help a wife whose
husband is beating her to death both because she is a
woman and because government practices in that country
allow men to treat women as property. Combined, these
traits form a particular social group.
Race and Nationality
The United States will grant asylum to someone who
would be significantly harmed because of her race or
nationality.
The term nationality includes citizenship, as well as
membership in an ethnic or linguistic group, and intersects
with the term race. Although this usually means significant
harm by a powerful group against a minority, that is not
necessarily a requirement.
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Often persecution on account of race or nationality is
closely tied to imputed political opinion. That is explained
further below.
Religion
I believe that religion can only hold a sacred place in
our hearts if we have the right to choose our faith or decline
it altogether. For this reason, Blandon Law proudly
represents humanists, secularists, deists and atheists in
their requests for asylum. Of course, we also proudly
represent those who are harmed (or may be harmed)
because they believe strongly in the doctrines of their faith.
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The Guidelines on International Protection: ReligionBased Refugee Claims define religion to include non-theistic
and atheistic beliefs. “Beliefs may take the form of
convictions or values about the divine or ultimate reality or
the spiritual destiny of humankind.1
Laws that harm members of a particular social group
but are applied equally to everyone in the country cannot
form the basis of an asylum claim. For example, the German
law against homeschooling impacts evangelical Christians
who want to keep their children at home to teach the tenets
of their faith. Those who do not send the children to school
may be jailed or lose custody. Nevertheless, religious home
schoolers are not jailed because of their religion; they are
jailed for failing to follow a general law. The same holds
true for those who refuse to join the military because of
their religion. Asylum is possible only if persons from that
religion face worse consequences.
Political Opinion
Political opinion has been defined as a belief
relating to any aspect of governance. Persons who may be
1
U.N. Doc. HCR/GIP/04/06
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harmed because they oppose the government in their
homeland would be wise to apply for asylum.
Asylum is often misnamed “political asylum” because
the myth is that only persons who oppose their government
receive asylum in the United States. While opponents may
constitute most asylum applicants, political beliefs are
completely irrelevant to a successful case that has to do with
the following: imputed opinion, atheism, and coercive
population control.
Imputed Political Opinion
Interestingly, if oppressors incorrectly believe that a
foreign national holds a political opinion and have harmed
her on account of that mistaken belief, she can win asylum
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in the United States. This is known as the doctrine of
imputed political opinion.
For example, an applicant may show that as a result
of her family’s political opinion, she was targeted because
someone believed she holds the same political opinion. This
argument has been very successful in cases where an
applicant does not have much proof of her beliefs, but the
family has a history of supporting a certain political party or
candidate.
Atheism
Those who do not believe in religion have a difficult
time winning asylum on account of religion. The better
argument would be for her to seek protection on account of
their political opinion – even if she (strangely) completely
agreed with her government’s policies! The asylum case
would be prepared this way: the atheist suffers because
harmful government policies are permitted due to the
religious beliefs of the majority.
An example of such a case is Matter of S–A–, 22 I&N
Dec. 1328, 1335 (BIA 2000). A young woman from Morocco
opposed not only her father’s orthodox Muslim beliefs, but
also the regime that allowed the torture of women in that
society based on those beliefs. In Morocco, her father
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burned her for wearing short skirts as opposed to the burqa,
beat her for speaking with a man, and forbade her to attend
school. He could abuse her because the police in Morocco —
following Muslim law — give a father complete power over
the life of his daughter.
The Board of Immigration Appeals (explained further
in Chapter 3) granted her asylum.
The government practices of several countries limit
freedom of religion. For example, in Pakistan, speech can be
repressed if it is not in the “interest of the glory of Islam.”
So, Pakistanis who oppose that government practice would
be granted asylum based on political opinion (and not
religion).
Coercive population control
A person who has been forced to abort a pregnancy
or to undergo involuntary sterilization or who has been
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persecuted for failure, refusal or resistance to a coercive
population control program, shall be deemed to have been
persecuted on account of political opinion. Likewise, those
who have a well-founded fear that they will be persecuted
for such failure, refusal, or resistance shall be deemed to
have a well-founded fear of persecution on account of
political opinion.
Again, a woman may agree with all the policies of her
government, but if she is afraid that she will be forced to
undergo population control measures, she wins asylum
based on political opinion.
Particular Social Group (PSG)
The most difficult category to explain is that an
applicant may be eligible for asylum as a member of a PSG.
Per the UNHCR, a particular social group includes
“a group of persons who share a common characteristic
other than their risk of being persecuted, or who are
perceived as a group by society. The characteristic will often
be one which is innate, unchangeable, or which is otherwise
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fundamental to identity, conscience or the exercise of
human rights.”2
Persons that have received asylum as members of
PSGs include the following:
2
i.
Homosexuals
ii.
Men with female sexual identities
iii.
Family members, such as widows
iv.
Former U.S. embassy employees
v.
Former child soldiers
vi.
Persons with disabilities
vii.
Filipinos of Chinese ancestry
viii.
Guatemalan street children
ix.
Honduran street children
x.
Persons who are HIV positive
xi.
Students
xii.
Former members of the national police
xiii.
Government employees
xiv.
Union members
UNHCR Guidelines on International Protection: “Membership of a
Particular Social Group” Within the Context of Article 1A(2) of the 1951
Convention and/or its 1967 Protocol Relating to the Status of Refugees
(2002) at 11.
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Whenever the Blandon Law team prepares an
asylum case, we ask many questions to determine if the
applicant is different from others in her society. In one case,
the applicant was an epileptic from India. This group
receives so much mistreatment that almost 100% of
epileptic women in India hide their condition until after
marriage.
The size of the PSG does not matter. In many
countries, women are forced into marriages. They either
acquiesce to sexual relations, keep the rapes secret, or are
beaten by her family or her husband’s family. These women
would be eligible for asylum.
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Women may qualify for asylum as members of a
distinct sub-group, such as:
i.
Women who have escaped involuntary
servitude after being abducted and confined
by an international criminal organization
ii.
Female members of a tribe
iii.
Young women who are members of a tribe
who have not been subjected to female genital
mutilation and who oppose the practice
iv.
Married women who have contracted HIV,
who fear their families will disown them or
force them to get a divorce, and who need to
be employed
v.
Young, Westernized, educated, Muslim
women
The particular social group is limited only by the
facts, the law and the creativity of the legal team preparing
the case.
Defining the Particular Social Group
In recent years, the courts required the applicant to
demonstrate that her group was "socially visible." This led
to inconsistent results because some judges interpreted
visible literally. Of course, it is impossible to see a difference
between a single woman and a married woman OR between
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someone who has HIV and someone who does not, although
these groups are treated very differently in most countries.
On February 7, 2014, the Board of Immigration
Appeals in Matter of M-E-V-G,3 redefined "social visibility"
as "social distinction." The applicant does NOT need to be
different from others in a way that can be seen. By
redefining PSG this way, the Board helped individuals who
must hide their membership in a group to avoid being killed.
3
26 I&N Dec. 227 (BIA 2014)
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Chapter 3 Who Decides Persecution?
Regardless of the reason for the harm, asylum
applicants must demonstrate that they have a well-founded
fear of significant harm if they are returned to their
homeland. This “significant harm” is known as persecution.
Persecution has been defined as an extreme concept that
does NOT include every sort of treatment that our society
regards as offensive.4
To explain what persecution is, it is important to
understand WHO decides whether persecution has
occurred. The greatest way Blandon Law can help a client
is by using existing laws to demonstrate to the person
reviewing the case that the applicant has suffered
persecution. The following graphic, with the Supreme Court
of the United States at the top, explains where we get the
law:
4
Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013)
27
Supreme Court
Circuit Court of Appeals
Board of Immigration Appeals
Immigration Court
USCIS Asylum Office
The Levels of Review
The term persecution may be only one word, but
judges define that word differently. An asylum case may
begin at the lowest level, reviewed by a government
employee at an Asylum Office of the U.S. Citizenship and
Immigration Service, and finish at the Supreme Court, which
is the highest court in the United States.
Below the Supreme Court are eleven courts known as
the Courts of Appeal. For example, cases that arise in
Florida, Georgia and Alabama are reviewed by the Eleventh
Circuit Court of Appeals.
28
Importantly, asylum cases from those states must
follow the law of the Eleventh Circuit. At the time of the
writing of this book, the Eleventh Circuit had ruled that the
following were persecution:
5
•
Attempted murder (specifically, being shot at)
•
A series of events and threats culminating in
attempted kidnapping of a young child5
Lucena-Vasquez v. US Att’y General (11th Cir. May 20,
2014)(unpublished)
29
In Florida, the Eleventh Circuit in Sanchez-Jimenez v.
Attorney General¸ decided that attempted murder is
persecution. In that case, the foreign national was shot at,
but lived to receive asylum in this country. Sadly, what
amounts to attempted murder varies depending on who is
deciding the case. Is holding a gun to someone’s head
attempted murder or a death threat?
The Seventh Circuit ruled in a way helpful to asylum
applicants. In Nakibuka v. Gonzales, that Court held that
pointing a gun to the foreigner’s head was sufficient to
establish persecution for asylum.
However, the Third Circuit held in Li v. Attorney
General that even repeated death threats do not amount to
persecution unless the threats are imminent. In that case,
the foreigner claimed to be under threat of abortion,
physical harm, and imprisonment. She was never physically
attacked. Meaning, that in states falling under the
jurisdiction of the Third Circuit, a foreigner will be able to
obtain asylum only if the persecutor could carry out the
threat . . . and quickly!
Federal judges preside over the Courts of Appeal.
They review written legal arguments that try to prove that
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the judges at the Board of Immigration Appeals incorrectly
denied the asylum.
The Board of Immigration Appeals, in turn, reviews
asylum cases decided by Immigration Court judges. As of
2015, there were over 50 Immigration Courts in the United
States. Some have only one judge. Larger cities, such as
Miami, Los Angeles, and New York City, have over 20 judges
each.
Because Immigration Judges decide thousands of
cases per year, judges often rule that some types of
significant harm are NOT persecution. An appeal is then
filed and, thus, the Board issues new cases about whether a
certain type of harm is sufficiently terrible to determine
persecution.
The Board has held that the following were
persecution:
•
6
Repeated beatings and multiple handwritten antiSemitic threats, apartment vandalized by antiSemitic nationalists, and son was subjected to
degradation and intimidation on account of his
Jewish nationality6
Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998)
31
•
Having an abortion where a reasonable person
understood that refusing the abortion would have
resulted in severe harm7
Asylum Offices – same law, different results
A foreigner can sometimes apply for asylum directly
with the Citizenship and Immigration Service (“the
Service”). Those cases are reviewed at one of several
Asylum Offices, which are in Arlington, Chicago, Houston,
Los Angeles, Miami, New York, Newark, and San Francisco.
The case begins with the Application for Asylum.
Unlike the Circuit Courts of Appeals which publicly
state that they interpret the immigration laws differently,
the Asylum Offices must all follow the same memos of the
Service. Nevertheless, certain Asylum Offices have higher
approval rates than others. Applicants should take this
into consideration if they have the luxury of deciding where
7
Matterof T-Z-, 24 I&N Dec. 163 (BIA 2007)
32
they will move after arriving in the United States.
As of this writing, statistics are available for the
Asylum Offices by going to the website www.uscis.gov and
searching for the term “Asylum Office Workload.”
These numbers show how many cases each Asylum
Office processes, as well as how many are approved. For
example, in June 2015, the Miami Asylum Office completed
356 cases and approved 100 of them. That was a twentyeight percent (28%) rate of approval. By contrast, the
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Houston Asylum Office only approved fourteen percent
(14%) of its asylum cases.
Different Asylum Offices also have different
processing rates. In the past, applicants would have a
decision in their case within six months of applying for
asylum. This is no longer true. Due to the large number of
individuals claiming asylum, the wait time has significantly
increased.
It is unfortunate that some Asylum Offices with the
highest approval rates in the country also have a surge in
the number of applications they are receiving. This,
regrettably, results in delays.
The U.S. Citizenship and Immigration Service
publishes a monthly bulletin on its website. That
information – known as the Affirmative Asylum Scheduling
Bulletin – is also available at www.uscis.gov.
It lists the Asylum Offices and indicates that in each
month it is scheduling cases for asylum applications
received on a specific date. For example, during all the
months of 2016 the Miami Asylum Office was scheduling
interviews for asylum applications received in May 2013.
34
Some Examples of Persecution
When deciding whether an applicant has suffered
enough harm for asylum, the government looks at all the
harm she endured. Discrimination or harassment is not
sufficient harm. Being called names or receiving phone
threats – with nothing more – will not be enough for asylum.
This section provides examples of cases where asylum was
granted. Again, keep in mind that each application has
different evidence and that (as explained above) different
judges in different parts of the United States make different
decisions.
35
Physical harm is generally strong proof of
persecution. Any evidence that the applicant was hurt
would be useful to an asylum case. In De Santamaria v. U.S.
Att’y Gen., 525 F.3d 999, 1008 (11th Cir. 2008), the Eleventh
Circuit Court of Appeals held that attempting to cause
physical harm (murder) is also persecution. Following this
logic, I would argue that attempt to cause serious harm that
is less than murder would also be persecution.
If the suffering amounts to extreme mental suffering,
this author would also argue that asylum is warranted. An
example of such a case would be the parent of a girl who
opposes female genital mutilation. The Sixth Circuit Court
of Appeals in Abay v. Ashcroft granted asylum to parents
who established a fear of persecution that their foreignborn daughter would be forced to undergo female genital
mutilation. The Sixth Circuit reasoned that a parent should
not be forced to expose their child to harm.
A tougher case to win is involuntary detention. In
some countries, men can treat their wives and daughters as
property and literally detain them against their will for as
long as they wish. The police do nothing to protect these
women on account of their particular social group (women
in relationships with men who treat them as property).
Blandon Law also represents these women victims.
36
Economic devastation can amount to enough harm
so that an Immigration Judge or an Asylum Officer grants
asylum. Examples of economic suffering include lack of
education which prevents employment, complete lack of
employment and scarcity of food or medicine.
Asylum will be granted if (1) either basic needs are
being deprived, which amounts to a threat to life or freedom
or (2) a deliberate severe economic disadvantage exists.
This second approach means that the foreigner does not
need to prove that her life was in danger, but rather her
livelihood was taken.
An example is a case where a former employee of the
government receives a salary and benefits (including
schooling for her children and insurance) only so long as she
supports the government’s policies. If she is forced to
become destitute on account of her opposition to a
government policy, that would be a good case for asylum.
Similarly, an applicant of a particular race who is
refused the basic education needed to subsist, including
perhaps forbidden to learn the language spoken most
widely throughout the country, would also be eligible for
asylum. This happens often among native peoples.
37
One applicant claimed that his particular social group
was that of persons who (1) suffer from a mental illness, (2)
are indigent, and (3) lack family support. The PSG had three
separate parts. The immigration judge denied his case,
stating that the trait of being indigent or lacking family
support could change at any moment (Immigration Judges
have often used the excuse that economic status can change
when denying asylum to persons who fear they will be
harmed because they are perceived as rich).
Fortunately, on appeal, the Board of Immigration
Appeals decided that mental illness was not something that
he could change. In other words, so long as ONE of the
traits of the PSG is fundamental to a person's identity,
they are eligible for asylum.
Relocation Impossible
Homeland means the ENTIRE Homeland. If the
applicant can avoid the harm by relocating to another part
of their country, asylum will not be granted. The fact finder
will also review whether the applicant firmly resettled in a
third country (by living there for some time legally) before
entering the United States.
38
The Department of Homeland Security may try to
deny the asylum case by claiming that the applicant firmly
resettled in a third country. Firm resettlement in a third
country is a bar to asylum. It is important to understand
that simply living in a third country will NOT result in the
denial of asylum. If a foreigner fears returning to her
homeland and can only stay in a third country temporarily,
she should still apply for asylum in the United States.
39
Chapter 4 What Harm Does Not Count
Unfortunately, millions of people are harmed in their
homelands. The laws of asylum protect only those persons
who are victims due to their race, religion, nationality,
membership in a particular social group, or political
opinion. Thus, applicants cannot win their case without
demonstrating the motive of the persecutor. This section
explains why some applicants lose their asylum cases and
then provides tips about how that case might have been
won.
Civil Unrest
Widespread violence, crime, and civil unrest by itself
does not give rise to a claim for asylum. Although their
homeland was experiencing civil-war-like conditions in the
spring of 2014, Venezuelans cannot in asylum case on that
basis alone.
40
On the other hand, general violence is not a reason to
deny an asylum case either. In 2013, the Eleventh Circuit
Court of Appeals, which controls any asylum case filed in
Florida, issued an decision that helps: Go Wan Tjhing v. U.S.
Att'y General The court reasoned "that general strife or
mass unrest has embroiled a country in violence does NOT
eliminate a claim that a petitioner was persecuted on the
basis of a . . . protected ground."
The fact that an applicant's home country is
experiencing widespread violence HELPS an asylum
applicant only if it shows increased fear of persecution due
to worsening country conditions. For example, a Jewish
person (or a gay person, or a property owner) may have
been harmed in Venezuela and the overwhelmed police
force was not able to respond to the call for help. THAT
would be a good asylum case. The person was harmed
BECAUSE of their religion or membership in a social group.
Crime
The heinous acts of violence suffered by the
powerless in some countries, in and of themselves, are not
grounds for asylum. A simple hatred towards criminals is
not considered a political opinion.
41
However, Immigration acknowledged in a
memorandum that women may experience gender-specific
types of harm, such as rape, more often in a lawless society.
See INS Memorandum, P. Coven, “Considerations for Asylum
Officers Adjudicating Claims from Women” (May 25, 1995).
After an Immigration Judge initially denied her case,
a Haitian woman who had been raped won asylum. She was
not merely a victim of general conditions of violence; she
had been targeted because she was a woman, which is a
particular social group. Matter of D–V–, 21 I&N Dec. 77, 78–
79 (BIA 1993).
Domestic Violence
Similarly, domestic violence is all too common in
many countries. If a woman is significantly harmed, the
chance of winning asylum will depend on the evidence she
presents in addition to evidence of the harm. In other
words, an experienced lawyer will help her prove that the
reason she was harmed by her abuser was because he (and
the authorities) saw her as his property and she could not
leave the relationship.
The Department of Homeland Security has taken the
position that women who are unable to leave their
42
relationship who are viewed by society as the property of
their spouses or boyfriends are eligible for asylum. These
cases, however, require extensive preparation because
Immigration Judges and Asylum Officers put victims
through hours of questioning to be certain that the attacks
did in fact occur.
Gang Violence
Similarly, while victims of gang violence cannot
demonstrate eligibility for asylum simply by stating that
they have been attacked, if the practice of the gang is to
target a particular social group, such as persons who preach
their religion, those persons can obtain protection.
At least one court held that opposing the criminal
conduct of gang members by reporting them to law
enforcement is not a political opinion. Amilcar-Orellana v.
Mukasey, 551 F.3d 86, 91 (1st Cir. 2008).
43
Chapter 5 What Documents Do I Need?
In a world of my making, asylum applicants would be
questioned wearing a lie detector. If they say they were
harmed on account of a protected ground, and the lie
detector says they are being truthful, they would be
approved within a few hours. That will remain my wish.
Foreign nationals must PROVE their identity, the
situation in their homeland, the harm suffered, and the
motive of the persecutor. In other words, the law requires
that the applicant provide documents about information
that our country already has.
The Real ID Act – which was enacted on May 11,
2005 -- imposed strict standards on foreigners by allowing
Immigration Judges to require applicants to produce
documents in order to win asylum. Testimony is not enough.
Fortunately, IF Immigration Judges deny asylum because
they believe records are “reasonably available," the judges
must explain why they believe the documents are on hand.
In other words, the government must demonstrate
why the foreign national could have obtained the evidence.
Despite this, foreigners must make every effort to obtain all
evidence to prove their claim.
44
Your Involvement in Preparing the Case
The law firm organizes the evidence, conducts
independent research, prepares you for the asylum
interview or court hearing, and represents you always
before the government agencies. One of our cases was won
after the family was denied at an Asylum Office and then
denied by an Immigration Judge. We won the appeal,
represented the family before the SAME Immigration Judge,
and won the asylum case. This was only possible because
the applicant was very involved in gathering evidence that
we requested: affidavits by expert witnesses, death
certificates of family members, and the like.
Blandon Law takes great pride in changing the lives
of its clients by winning asylum cases. Thus, if a client
abandons her case by refusing to help gather evidence or
provide information, we withdraw our representation.
This contrasts with what a notary might do for a
client. A notary may prepare the application with minimal
input from the client. Of course, notaries do not represent
the client at the Asylum Office (other than acting as a
translator) and are not allowed into the Immigration Court
at all.
45
The following is a non-exhaustive list of the
documents needed:
Documents to Identify Yourself
Passport (if available) and National ID. Personal
identification documents are a requirement, including a
birth certificate, a passport, and an ID card if the
government regularly issues one. Of course, some
governments refuse to issue documents to those it
oppresses. In those cases, foreign nationals must
demonstrate they attempted to get the document, but were
refused.
There is a problem with dual citizenship. If the
applicant holds legal status or citizenship in a second
country, asylum will not be granted without demonstrating
fear of future harm there as well. This is difficult, but not
impossible.
Importantly, however, applicants can argue that they
have no allegiance to the second country. If the Immigration
Court agrees, the applicants would only need to prove a fear
of persecution in the remaining country of citizenship. In
Matter of Fatoumata, the Board decided that asylum could
be granted to dual nationals unless applicants owe a
"permanent allegiance" to that second country.
46
The author won asylum for one Italian/Venezuelan
because the consul of Italy signed a letter indicating that the
client owed no allegiance to his country.
Applicants can prove they lack "permanent
allegiance" to the second country of citizenship in other
ways. The facts surrounding how they obtained citizenship,
lack of knowledge of the country's foreign language, and
failure to visit the second country all indicate there is no
allegiance.
There is also a problem with derivative citizenship,
which means a nationality that can be obtained from a
spouse, parent, or grandparent. Immigration denies asylum
to applicants who can obtain citizenship from a second
country even if they do not yet have that citizenship.
I believe that is an incorrect interpretation of the law
and represent derivative clients successfully. Congress did
not intend in the immigration laws to exclude foreigners as
refugees because they might obtain citizenship from
another country. Anyone can become a citizen of Dominica
(not to be confused with the Dominican Republic) simply by
paying the government $100,000. Logically, Immigration
would want all asylums to be denied because an applicant
can get citizenship there.
47
It is important to provide other documents
identifying the applicant. We request proof of studies and
career development such as diplomas and resumes to
demonstrate the person was established in her country and
only came to the U.S. because she had to. Likewise, we
request proof of family ties – birth and marriage certificates
– demonstrating the applicant had to abandon her family to
survive.
Proof of the Harm You Suffered
Past persecution establishes a presumption of future
persecution. An experienced attorney seeks documents
demonstrating past harm because such proof establishes
that it is more likely than not that harm will come to the
foreigner in the future.
48
Asylees are defined by their well-founded fear to
return to their homeland. That fear must be not only
subjective (“I’m scared.”), but also objectively credible
(“Anyone would be afraid.”). The simplest way to
demonstrate a valid fear of future harm is by presenting
records relating to past harm suffered. We ask that clients
provide us with photographs, news articles of attacks,
hospital and medical records. All foreign language
documents need translation to the English language. In
addition, our lawyers help clients explain to their physicians
abroad the type of statement that would be useful.
Generally, the more detailed the explanation, the better.
Police reports of attacks, of course, would be
valuable to demonstrate that an applicant suffered harm.
Where it is impossible to get such a report – perhaps
because the authorities refuse to help the applicant – a
police report is not needed.
Asylum applicants may also establish fear for future
harm by demonstrating that citizens of their country, in a
similar situation, would suffer persecution. In these cases,
applicants must establish a pattern or practice of harming a
particular group of persons and that they are members of
such a group. Evidence for such a claim would generally be
found in the Department of State’s Country Report.
49
Country condition reports and media articles have
considerable information relating to the killings and
tortures of persons who candidly oppose gangs. These
reports and articles are just the type of evidence required.
Another way to convince the Asylum Officer or the
Immigration Judge that the applicant will be harmed is by
“finding the twin.” Blandon Law requests evidence of other
victims who suffered the same fate. If the supervisor of a
Colombian nurse left the country and obtained asylum in
Canada, that’s proof that the nurse’s fear is reasonable. If
the owner of a Venezuelan construction company had to flee
to avoid arrest due to his political opinion, that is proof that
the manager of the company may also be arrested. To
obtain information about persons in similar circumstances,
Blandon Law also conducts independent research.
Proof of Non-Physical Harm
Most of our asylum clients, fortunately, have not
been harmed physically. We still can win those cases by
presenting many documents showing that they it is more
likely than not that they will be harmed if they return. Such
documents include death certificates of others who were
killed, medical records of others who were seriously
harmed, therapist reports of serious psychological harm,
50
proof of constant moving to avoid harm, and proof of
serious property damage. In some cases, we have provided
photographs of bombed buildings and burned homes. We
also provide documents to show the burned dwellings
belong to our clients.
Importantly, it is not always necessary to suffer
physical harm or to fear suffering physical harm to win
asylum. Religious minorities can receive asylum if they can
demonstrate that their materials – such as Bibles – were
taken from them or that it is common practice to arrest
worshippers of their faith.
Proof of the Persecutor’s Motive
The more difficult part of winning asylum cases is
proving that the harm will occur or has occurred on account
of a protected ground. The Asylum Officer or the
Immigration Judge needs applicants to demonstrate what
was in the mind of the shooter, the abuser, the gang
member, or – worst yet – the police officer. Often, the only
evidence is the testimony of the applicant. What words did
the persecutor say just before he hit you?
It is VITAL in asylum cases that the applicant is
believable precisely for this reason: the case depends
on what the applicant says about the persecutor’s
motive.
51
Although clients often initially come to Blandon Law
with news articles about problems in their countries,
different sources of news are given varying levels of
deference by the fact finder. For example, a news article
about an attack published in an international newspaper
such as The Washington Post will be reviewed carefully. A
blog post or a personal e-mail about the same incident is
likely to be ignored.
The best evidence, then, would be reports of human
rights organizations. Asylum officers are trained to
research information on foreign countries. In addition, they
– like Immigration Judges – have vast information at their
disposal provided from other applicants including country
reports from the Department of State. Each and every
applicant, nevertheless, has the burden to provide evidence
about the conditions in the homeland. Although the United
Nations may be holding hearings about the slaughter of
civilians by President Bashar al-Assad, Syrian asylum
applicants must present evidence of a pattern of harming
anti-government protesters.
The applicant must demonstrate that she was
harmed because of her race, nationality, religion, political
opinion or membership in a particular social group. This
52
section explains what documents might be needed for this
part of the case.
Political Opinion. “[Leadership in an organization,
volunteer work, writing articles, and serving as an editor of
a publication] is reasonable, substantial, and probative
evidence on the record as a whole demonstrating [an
asylum applicant’s] actual belief.” Najjar v. Ashcroft, 257
F.3d 1262 (11th Cir. 2001).
The definition of atheism at its core is the absence of
believing in any religion. For this reason, Blandon Law
prepares these cases based on political opinion. The
political opinion of these asylum applicants is that the
government should not force ANY religious belief on any
member of the homeland.
Religion. The definition of religion is any belief about
the spiritual destiny of mankind. We request certificates
and photos showing participation in religious activities,
holidays or sacraments. Some religions also issue
identification cards or other proof of leadership positions in
the faith. Although there is no requirement that an
applicant be deeply involved in her religion to win asylum, I
have witnessed that cases are more easily won by those who
53
ARE involved in many activities and events at their place of
worship.
Particular Social Group. Membership in a PSG can be
demonstrated with many documents, depending on the
case.
Persons who are viewed as apostates (those who
change their religion) are at risk of being killed in
governments such as Iran. Importantly, such a person can
get asylum by proving that others view her this
way…regardless of her beliefs. One such case is the owner
of a house where atheists held their meetings. That case
would rely heavily on affidavits of persons who attended the
meetings.
What if I Can’t Get Documents?
Getting these documents requires a great deal of
effort. Applicants who are outside their home country must
rely on friends and family back home. Similarly, if the
events happened many years ago, it is difficult to get old
records. In some countries, the authorities flat out refuse to
give copies of police reports.
So, it is not uncommon for clients to ask, “What if I
can’t get these documents? Can I still win the asylum case?”
My response is “If you don’t buy the right shoes, can you get
54
to the top of a mountain?” The answer is yes, you can go in a
helicopter. But you would not want to try it because it is a
much harder task and will take longer if you do not have
access to a helicopter.
The same occurs with an asylum case. An applicant
MUST provide a document OR provide a detailed
description of all the efforts made to get the document. So,
either get the death certificate of someone who was harmed
in your home country OR get a statement from the spouse of
the person who died giving a reasonable explanation of why
she could not provide the death certificate.
What if the Documents are Wrong?
Another common occurrence is a client who brings
documents, but then she says that the report has the wrong
date. Or the doctor made a mistake and did not mention all
the injuries. To be clear, Blandon Law does not submit any
documents to the government or to the Immigration Courts
if we doubt the complete truth of what is stated.
Our attorneys are ethically obligated to be truthful
when representing clients. This high level of
professionalism is also a benefit to our clients. Immigration
Judges, Asylum Officers and attorneys representing
Immigration have good memories. Because we have been
55
representing asylum clients for over a decade, they know
that Blandon Law cases are complete, thoroughly prepared,
and straightforward. It is easier to win asylum for clients
because of this good reputation.
If documents have incorrect information, we wait
until the corrected papers are delivered to us.
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Chapter 6 When Will My Case Be Filed?
The application must be received at Immigration
within one-year of the foreign national’s arrival. If the case
is denied and the applicant has another status, such as being
a student, the process ends there. However, if the case is
denied and she has no legal status in the United States, she
will be referred to an Immigration Judge. This poses a
dilemma for those persons who REALLY fear returning to
their home countries. She must file for asylum within one
year of arriving, knowing that if she does not win, she will
face removal from the United States. A case begins in Court
with a Notice to Appear.
57
When a foreigner applies before Immigration, the
interview should be scheduled within 45 days of filing.
Currently, most Asylum Offices are facing long backlogs and
they are not interviewing until several years after receiving
the application.
Because it is unknown when the interview will be
scheduled, it is important that foreigners have all of their
documents ready when they submit their application. In
fact, the instructions require that the applicant mail the
proof with the application.
Once the interview is completed, the foreign national
should receive a decision within a few weeks of the
interview date. Again, the key word is “should” because the
Asylum Offices are taking several months to provide
decisions in some cases.
When Immigration wants to remove a person from
the United States, the government makes its case before an
Immigration Judge. There will be a lawyer representing
Immigration at one table and the foreigner will be at
another table, both in front of the judge. One of several
ways that a foreigner can win her case and remain in the
U.S. is by applying for asylum.
58
Attorneys are needed at Immigration Court because
cases involve more than filing an application. Sometimes it
is necessary to prepare Motions asking the Immigration
Judge to decide the case according to certain laws or
regulations. There are specific ways to prepare these
Motions and, of course, only lawyers know how to analyze
the law in the way that will give the client the greatest
chance of winning.
One-Year Deadline
While all foreigners must file an asylum application
within one year of their last arrival in the United States, an
Immigration Judge has the authority to move up the oneyear deadline. Judges are the “master” of their courtrooms
and can impose an earlier deadline. This presents a
challenge for foreigners who find it difficult to obtain all the
59
documents needed to support their case, especially when
some of that evidence must be released by foreign
authorities such as the police.
After submitting the application for Immigration
Court, the final hearing will be scheduled many months
later. As a result, the foreign national will have time to
gather additional evidence.
Filing After the One-Year Deadline
The filing deadline may be waived if applicants can
show either changed circumstances that affect their
eligibility for asylum or extraordinary circumstances
relating to the delay in filing. The following examples have
been successful: serious illness of the foreigner, death or
serious illness of a member of the foreigner's immediate
family, and hiring another attorney whose services were
useless.
If Immigration does not agree that the exception
applies, the agency denies the application and refers the
case to Immigration Court.
No Deadline Applies to Children. Children can file
asylum any time before turning 18 years of age. There is
nothing more heart-wrenching in practicing immigration
law than watching children try to represent themselves in
60
Immigration Court. Children should never do it alone. When
choosing an attorney, they should look for someone
experienced in representing their special needs.
Children must be treated with special care in
preparing for interviews and court hearings. Minors are
often fleeing devastating situations in their home country
and the trip to the United States leaves them devastated. An
attorney experienced in representing children will know
that they refuse to answer questions about painful events,
have difficulty making eye contact, and do not want to
explain their story.
Experienced attorneys will use information that
applies only to children. For example, the United Nations
issued a report describing the dangers that unaccompanied
minors face when traveling to the United States. The report
"Children on the Run" is a chilling account of the dangers
these children face in their home countries, namely being
forced into a gang or becoming victim of murder.
Motions to Reopen give those who have been
ordered removed (deported) a second chance to stay legally
in the U.S. A Motion is an attorney's written argument as to
why the foreigner should win.
61
A typical Motion to Reopen requires that the foreign
national file the motion within 90 days of the Immigration
Judge's decision. During that time, the foreign nationals may
also file for a stay of removal, which if approved, allows
them to stay in the United States while the motion to reopen
is pending.
Typically, when a foreign national files a Motion to
Reopen, the government attorneys file a motion opposing
that the case be reopened. However, Immigration Judges
make their own independent and objective decision based
on the facts and the law.
Judges MUST explain why they are approving or
denying a Motion to Reopen. The Board of Immigration
Appeals remanded a decision to an Immigration Judge for
failure to "make clear and complete findings of fact." The
Immigration Judge did not explain the reason for denying
the Motion to Reopen except to agree with the government's
opposition.
If approved, a Motion to Reopen puts individuals
back in proceedings with a second chance to hear their case.
While the case is pending, the applicant can legally remain
in the United States.
62
A foreigner can file for asylum years after arriving –
or reopen a deportation case if she was previously ordered
removed by an Immigration Judge – based on Worsening
Country Conditions. To reopen a deportation case, the
applicant will have to provide material evidence that was
unavailable at the time she was previously in removal
proceedings. Courts will carefully inspect the evidence
presented to be certain that there was no way that it could
have been obtained before. In addition to presenting ample
evidence of worsening country conditions, the applicant will
need an attorney to write a legal argument explaining why
the applicant now deserves asylum.
Applicants may also file the applications after the
one-year deadline if there has been Ineffective Assistance by
a prior lawyer. This is also true if the applicant filed before
and was denied.
A denial of a case does not give rise, in and of itself, to
a valid claim for ineffective assistance of counsel.
Importantly, applicants must show that the prior attorney's
actions prohibited them from being able to present their
case within the one year. She must show that she was
prejudiced by the other attorney's actions.
63
To be successful in filing an appeal based on
ineffective assistance of counsel, applicants must comply
with the requirements set out in Matter of Lozada. Asylum
applicants must 1) present a motion supported by the
contract agreed to with prior attorney 2) inform prior
attorney of intent to file claim and give attorney opportunity
to respond and 3) indicate whether a charge has been filed
with the bar association regulating attorneys in that state.
Failure to file asylum applications within one year of
an applicants' last arrival in the United States, failure to file
within a reasonable time after changed circumstances, and
(sometimes) admitting that criminal convictions made their
clients removable from the United States have been found to
be instances where an attorney has provided ineffective
assistance to their client.
Deadline for Benefits
Work Authorization. Foreigners are often anxious to
start working so that they can support themselves and their
family. The “asylum clock,” as it is commonly called, starts
ticking when a complete asylum application is filed with the
Citizenship and Immigration Service or in front of the
Immigration Judge.
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Applicants can file an employment authorization
application 150 days after filing for asylum. Immigration,
however, may not provide a work permit until 180 days
have passed.
In order to avoid fraudulent work permit
applications, Immigration tries to decide cases before the
150-day deadline, if possible. If the asylum is denied, the
applicant is not eligible for work authorization.
In Immigration Court, the asylum clock is “frozen”
when the delay is caused by the foreign national. For
example, when a person asks the Immigration Judge for
additional time to hire an attorney, the asylum clock is
stopped. Until the next hearing, the 150 days needed for the
work permit are NOT being counted.
Legal Permanent Residency. Asylees may file for
residency ONE year after the date of approval. They will
need to submit proof of the asylum approval, which would
be either the approval letter from Citizenship and
Immigration Services or the Immigration Judge’s order.
When obstacles prohibit foreign nationals from obtaining
legal permanent residence, they maintain their asylee
status. Examples of such obstacles include past arrests and
convictions, even in their homelands.
65
Five Years for Citizenship. Legal permanent
residents may apply for naturalization three months before
the five-year anniversary of the issuance of the green card.
U.S. citizens can petition their parents, who receive
immigrant visas abroad and green cards when they arrive in
this country.
Petition for Family Member. Asylees may petition for
their spouse or children under 21 years of age who are
outside of the country. The foreigner can file this
application immediately after approval, but it must be filed
within two years of the asylum approval.
Filing an asylee family petition is a two-step process.
First, the asylee must file the petition with the U.S. Citizen
and Immigration Services. With this application, the asylee
must provide the following:
66
•
Documents demonstrating the family relationship
(for example, a birth certificate or marriage
certificate)
•
Proof that your asylum application was approved
(for example, the order of the Immigration Judge or a
copy of the approval from US CIS)
Once the U.S. Citizen and Immigration Services
agency approves this petition, the approval notice is
transferred to the embassy or consulate where the relative
will be going for an interview. The embassy will contact
your attorney regarding which forms and documents are
needed for the interview (including, but not limited to, a
valid passport, medical exam, and original birth certificate).
When all the forms and documents are ready, your
family members will attend their interview with a consular
officer. If approved, your family member will receive
permission to travel the United States.
The spouse and children receive asylee status upon
arrival, including employment authorization. After one year
in that status, they apply for their green cards, too.
General Process at Blandon Law
Blandon Law works in teams for the benefit of our
clients. In other words, whoever can help the client the
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fastest or with the most complete information does so. Our
cases begin after a consultation with a lawyer, during which
we determine if we can win on behalf of our clients. The
next step is that a contract must be signed, the biographic
page of the passport provided, and a deposit must be paid.
Then, our clients receive a temporary password that
gives them access to our confidential system. We use this
system to receive confidential information through a
questionnaire and documents. It is the fastest way to send
messages to our attorneys. The answers, however, may
come from whichever member of the team is most rapidly
available with the information requested.
For example, if a client sends a message to an
attorney asking if Immigration received the asylum
application, the team member who opens the mail and gets
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the Immigration receipts would respond with the
confirmation. The attorney would also read the client’s
message, but not respond to it.
A typical asylum client will have four – or more –
consultations before a case is filed with the government or
the Immigration Court. Because there are strict filing
deadlines and there is much work to do before filing the
case, it is important to hire Blandon Law at the earliest
opportunity.
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Chapter 7 Why Won’t They Believe Me?
Credibility is important enough that it deserves its
own chapter. The same problems arise over and over again
in asylum cases. Learn how to avoid these mistakes.
There Are No Small Contradictions. In everyday life,
humans make mistakes. Asylum applications, however, are
expected to be error free. Applicants have multiple
opportunities to correct the information: they lived the
facts, related them to family members, described them to an
attorney, and then reviewed the paperwork prior to signing.
So, the Asylum Officers and Immigration Judges believe that
there is no excuse for a mistake. Documents MUST match
testimony.
Asylum is one of the most difficult immigration
benefits to obtain because the applicant is desperately
trying to forget past events, but she can't win her case
unless she describes those past horrors, clearly and in great
detail, to government officers. Being direct will literally save
the applicant’s life. The Asylum Officer or Immigration Judge
must believe her. When an applicant exaggerates, or forgets
to mention even a seemingly insignificant detail, the Asylum
Officer or Immigration Judge stops believing the rest of the
statement.
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A good example of how a case can be denied for a
minor inconsistency is Zhi v. Holder. There, the applicant
said events had happened on a specific date. The documents
provided, however, had a different date. Based on this
contradiction, the Immigration Judge denied asylum.
Fortunately, on appeal, the federal court said that the
applicant deserved an opportunity to submit corroborative
evidence or to provide an explanation as to why a document
with the correct date was not available. TIP: review all
documents -- as well as the English translations -- to be sure
the dates match your memory.
Likewise, an applicant should NEVER submit a false
document. Period. If a document cannot be obtained, an
applicant must demonstrate all the efforts that were made
to acquire it. When clients let us know that prior
representatives submitted false documents, we inform the
Immigration Judge. Such a showing of integrity has won
more than one case.
How Can an Attorney Help Me with Credibility Problems?
As explained above, the applicant must know her
information. Because memories fail, an experienced
immigration attorney will review the important incidents
with the applicant prior to the interview or hearing.
Applicants must recollect the dates and details of each
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attack with the same precision that they state their name
and date of birth.
An immigration attorney will also review the client’s
chronology of events carefully because an omission is just as
much a mistake as erroneous information. Clients tell
Blandon Law attorneys information they do not reveal to
anyone else or information they would only reveal to
someone of their own gender. Victims of repeated abuse are
especially likely to forget important dates or details.
An applicant should be given an opportunity to
explain an inconsistency. If an applicant states that he was
attacked by three persons, but later remembers a fourth
attacker, she should not panic. Officers and Judges know
that nervousness often leads to an innocent mistake. Rather
than leave the incorrect answer at three, an applicant
should quickly explain and move forward.
During the interview or hearing, an experienced
immigration attorney continues to assist an asylum
applicant in two ways. First, the lawyer ensures that the
asylum officer or trial attorney remains civil and asks
relevant questions. Victims cannot endure undue pressure
by U.S. government authorities. Second, the lawyer explains
why the evidence produced is the most complete and
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reliable record available, given the conditions in the
applicant’s home country. A lack of appropriate
documentary proof can result in a denial.
The following are things an asylum applicant should
NEVER do at an Asylum Office or Immigration Court
hearing:
•
Embellish the story to make it seem worse than
it actually is
•
Try to provide information if the real answer is
unknown
•
Avoid looking directly at the person speaking
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Chapter 8 Will My Case Be Denied for Other Reasons?
Asylum is a discretionary form of protection,
meaning that the government can deny it to persons who it
deems are unworthy of this benefit. It is important to
understand that some regrettable actions, however, do no
not disqualify someone for asylum.
Working Without Authorization
Although it is unlawful to work without government
permission, it is sometimes a necessity. Applicants must
provide information relating to past employers on the
application for asylum. Working without authorization is
not a reason to deny asylum.
Manner of Entry. Not everyone enters with a visa.
Foreigners who entered the United States without any
authorization, or overstayed their legal entries can also apply
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for asylum. As with all parts of the asylum process, it is
critical to be honest about the manner and date of entry.
Criminal Matters
Asylum applicants will have their applications denied
on mandatory grounds if they committed a crime deemed to
be a particularly serious crime or if there is reason to
believe they committed a serious nonpolitical crime outside
of the United States.
The Immigration and Nationality Act states that all
aggravated felony convictions will be deemed particularly
serious crimes. These are crimes named aggravated either
because of the nature of the offense, the term of
imprisonment or the loss to the victim. Because the
consequences of such a charge are drastic, a foreigner
accused of an aggravated felony MUST hire an immigration
attorney.
In determining which convictions constitute a
particularly serious crime, the Asylum Officer or
Immigration Judge will examine whether the applicant is
considered a danger to the community. Additionally, the
factfinder will examine the length of the sentence imposed
and the nature of the crime. Applicants should present
ample evidence of their good nature, notwithstanding this
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conviction. For instance, asylum applicants should
demonstrate that since their conviction they have been lawabiding citizens.
The Immigration Judge or Asylum Officer may also
deny asylum on a discretionary basis if applicants' have a
lengthy and serious criminal history. Nevertheless, a finding
that asylum applicants would suffer serious harm in their
home country will generally outweigh any discretionary
denial based on criminal convictions.
Convictions for fraud-related offenses are
particularly sensitive in an asylum case. An Asylum Officer
or Immigration Judge must believe the applicant and
convictions for fraud predispose these persons not to
believe the testimony.
Blandon Law does not represent foreigners with
certain arrests. Because we represent victims of
relationship violence, we do not represent foreigners who
have been arrested (even if not convicted) of battery or
assault against a woman or a partner. We also do not
represent foreigners who have been convicted of controlled
substance offenses.
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Other Strategies in the Event of Denial
It is important to plan an appropriate strategy in the
event the case is not successful because the risk of harm
upon return is so high. Blandon Law believes in
perseverance: “In the end, it’s going to be okay. If it’s not
okay, it’s not the end.”
A Different Type of Protection. Unlike
Immigration, an Immigration Judge can also rule on whether
the foreign national is eligible for withholding of removal
and protection under the Convention Against Torture.
Unlike asylum, withholding of removal or relief under the
CAT does not confer a path lawful permanent resident
status or U.S. citizenship. Travel permission is also not
granted. An applicant only receives work authorization
while in the U.S. If any other country is willing to accept the
person, she can be deported there
A person who submitted an asylum application late is
eligible for withholding of removal because that type of
relief has NO deadline.
Appeal of Asylum Case. Foreign nationals have a
mere THIRTY DAYS to appeal an Immigration Judge’s denial
to the Board of Immigration Appeals. Before considering
whether to appeal the case, discuss the facts thoroughly
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with an experienced and honest immigration attorney. For
example, at Blandon Law, we rarely will appeal a case if the
Immigration Judge ruled that the applicant lacked
credibility. Those appeals rarely win. The better use of the
client’s money and energy would be spent on seeking
another avenue of relief for the client.
An appeal does not require gathering additional
evidence. In fact, submitting additional evidence is frowned
upon. The appeal requires a properly written legal
argument as to why the applicant was eligible for asylum
based on the law. In most cases – to the surprise of the
foreign nationals – winning the appeal means only that they
will face the same Immigration Judge. I won an appeal
before the Board, returned to the same IJ who denied the
case previously with another immigration attorney and –
after several hearings – won the case.
Federal Court. When planning the strategy,
remember that the Board denies more appeals than it
approves. A foreigner who fears she will be harmed upon
return must be prepared to appeal to the next level: the
federal court. Such was the case of a gay HIV-positive
Venezuelan whose case was denied both by an Immigration
Judge and by the Board. The IJ and the Board did not
believe that he was a member of a particular social group.
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When he appealed to the federal court, he won and was
allowed to stay.
Most immigration attorneys do not appeal to the
federal courts because there are specific procedures and
rules that practitioners must follow in those cases. Not
everyone knows how to practice in this niche market. The
author has filed federal court appeals and made a successful
oral argument to the Eleventh Circuit Court of Appeals.
Federal courts can also review the issue of the oneyear deadline. In other words, if Immigration and the Board
denied asylum to a foreigner because of the deadline, she
can argue this issue again on appeal to a federal court.
Winning with Another Case. An asylum applicant
should not put all her eggs in one basket. She will apply for
a green card in every manner legally available. Blandon Law
encourages her to do this, so long as she understands the
consequence of multiple filings.
Employment-Based Residency. It is wise to assume
that information given in the employment-based case
submitted to Immigration will be available to the
Immigration Officer who decides the asylum case. For this
reason, an experienced immigration attorney will review all
the documents submitted with business visa applications
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and employer petitions. For example, an asylum applicant
might claim that she went into hiding due to an attack in
October, but the resume she provided for her work visa
states that she kept the same job from June through
December. That might be a lethal inconsistency because if
she was so afraid in October, how could she continue going
to work as if nothing had happened? Continuing to appear
in a place where her enemies could easily find her might
show that she did not actually fear them.
At Blandon Law, we ensure that such case-killing
contradictions either do not exist or can be explained
appropriately. After all, maybe after the attack in October
she worked remotely from home.
Family-Based Residency. As John Lennon said, “Life is
what happens while you’re busy making other plans.”
Sometimes, while planning never to return to a homeland,
foreign nationals fall in love and marry United States
citizens. Foreign nationals with legal status should
withdraw their asylum applications after they receive a
green card based on marriage to a U.S. citizen.
But U.S. citizens do not have the monopoly on
romance. In one case, a Muslim woman applied for asylum
specifically after she married an Orthodox Christian in the
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United States. Her own family would have killed her if she
returned to Turkey. Her husband was the one without
status; after approval, he also obtained asylee benefits.
If the foreign national marries after the case has been
referred to an Immigration Judge, the couple must
demonstrate by clear and convincing evidence that the
marriage was not entered into for immigration purposes.
Cancellation of Removal is a defense strategy for
those persons in deportation proceedings before an
Immigration Judge. If the deportation would cause extreme
and exceptional hardship to a U.S. citizen or legal permanent
resident spouse, parent or children, the foreign national will
not be deported. Instead, the order of the Immigration
Judge granting the case establishes that the foreigner is a
legal permanent resident.
Asylum applicants can rarely apply for cancellation
of removal because the foreign national must have lived in
the United States for at least ten years to apply. That is far
beyond the one-year deadline to apply for relief based on
asylum. Some persons, however, who are applying for
asylum based on recently changed circumstances, may be
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eligible for BOTH cases.
In one case, a client was carried into the country in
her mother’s arms when she was one year old. When she
was an 18-year-old, she married her U.S. citizen boyfriend
and converted to Evangelical Christianity, from Catholicism.
At the time, armed groups in her home country of Colombia
persecuted Evangelical Christians. Although we eventually
won the asylum case, we filed the cancellation application
also to improve the likelihood of her staying.
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Conclusion
Because asylum can lead to a successful future in one
of the greatest countries in the world, we encourage foreign
nationals to apply if they fear returning to their home
country. This book answers many questions, but only an
attorney can professionally advise whether you should file
and how best to prepare your case. Call (954) 385-0157 or
visit www.Blandon-Law.com immediately to schedule that
consultation. Blandon Law is here to open the door to your
success.
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