What Are My Rights At the Border/Point of Entry?
Step 1: Upon arrival, request asylum
Your goal? Being given the status of Lawful Permanent Residence (Green Card)
Will my story qualify me for asylum?
Asylum can be applied for if your reason for leaving your country meets these three requirements:
1: A reasonable fear of persecution in your home country, or, if you have no country, the country in which you “habitually reside”.
What is reasonable fear?
As defined by the United Nations, “reasonable fear” is a chance of at least 10% that you will experience persecution. In other words, the persecuted group you are a member of statistically has a 1 in 10 chance of being harmed.
2: Your fear of persecution is based on the following five reasons: Your ethnicity, your religious beliefs, your nationality, your expressed political beliefs or membership in a particular social class.
The phrase “particular social class” is perhaps the most undefined of the five categories — it can include things like a person’s sexuality or social caste. An increasing number of asylum cases are based on persecution of LGBT people.
Definition of persecution:
Persecution has also frequently been defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” Persecution is usually physical but can also be emotional or psychological.
This can be further defined as:
- Serious physical harm
- Coercive medical or psychological treatment
- Systematic prosecution or disproportionate punishment for a criminal offense
- Severe discrimination and economic persecution, and severe criminal extortion or robbery
3: You must be able prove the government of your home country/origin country is either involved in the persecution you have experienced or is unable/unwilling to control it being done by the group who is persecuting you.
Important Facts to Remember
You have one year from the day you enter the U.S. to apply for asylum, or from your visa’s expiration. If you are past the one year deadline, you should retain the services of an attorney to plead your case, if you have a valid reason for the delay.
If you entered the United States illegally, you are still legally entitled to apply for asylum.
There is no fee to apply for asylum.
However, You can’t apply for asylum at a U.S. Consulate or Embassy.
Under U.S. law, asylum seekers can apply only if they are physically present in the United States (or at least at a U.S. border or other point of entry).
Step 2: Your written application and documentation
You will need to submit Form I-589 as part of your application and send it in by mail. There is no fee for applying. The form is 12 pages and asks questions about your name, address, information about your spouse and children, places you have lived, and Parts B & C that ask the circumstances of why you are applying for asylum and for any other pertinent information. Part D is your signature attesting that you are providing accurate information. Part E is for someone to fill out if they are assisting you with your application and parts F and G are filled out by the person who will be conducting your asylum interview.
You will also need to provide documentation of your fear of persecution
The closer this documentation is to you, the better.
Some example of this could be, if you could come up with a document showing your church membership, a photo of you in the newspaper being beaten by members of another religion, and a doctor’s report describing the extent of your injuries, those would be ideal evidence. However, most people aren’t able to come up with such convincing documents.
This is why it’s also important to collect documents that more generally show the conditions you are describing in your country. For example, reports by human rights organizations, affidavits by experts, and newspaper reports describing persecution faced by people who are in a similar situation to yours are all fine forms of documentation. Your testimony at your asylum interview (described below) will also be very important. Sometimes, a person’s entire case rests upon their ability to convincingly tell their story of persecution.
Where do I go to start my asylum application if I am NOT at a point of entry/US border?
If you are already in the United States and realize that you need to begin your application, you can visit an office of USCIS. Their Refugee, Asylum and International Operations Directorate can help guide you through the process.
Step 3: Your interview
A few weeks after submitting your application (Form I-589), you will be called in to a local USCIS office for your interview regarding your asylum application. If you do not speak/understand English yet, you will need to bring an interpreter with you. An asylum officer will go over your application with you and go over the documentation you have provided. It is very important that you review all of your facts (dates, people, places) before the interview so your story is accurate. You will also be asked further questions that are not on the application to determine that your story about belonging to a persecuted minority is truthful.
You asylum officer will not make a decision on the same day as your interview. You will receive a further notice to return to the USCIS office and receive your answer in writing at the front desk.
What if my case is denied?
If the asylum officer has reasonable doubt about your case, your application may be denied. Once a case is denied, USCIS will refer you to an immigration court for removal proceedings unless you’re still in valid visa status. In an immigration court, you can appeal the decision and bring forward any additional evidence before an immigration judge. You may also call witnesses and you can be cross-examined by a lawyer for the U.S. Government. These proceedings can take several hours and also frequently get postponed for days. At the end of this, if your case is still denied, you can appeal to the Board of Immigration Appeals, then, if that fails, to a federal circuit court, and, failing that, to the U.S. Supreme Court. However, you will be financially responsible for your legal representation throughout the appeals process.
What stage of this should I get a lawyer?
It’s wise to seek professional legal help as early as possible to make sure your case gets off on the right foot. You will save time and in the long run, money with less need to scramble for documentation that you may not have known you needed.
What about poverty as a reason for migrating?
The recent news coverage of the group of people migrating from Honduras brings to light the issue of what factors can make someone eligible for asylum. Many of the people interviewed on why they are leaving their home country have similar stories of extreme economic hardship. Honduras recently held a highly contested re-election of its president Juan Orlando Hernandez.
The governmental crisis and political chaos that followed, have caused the Honduran economy to become unstable and, in the usual fashion, the instability has led to an economic meltdown. Hondurans everywhere are trying to provide for their families on less than $4 a day. In the power vacuum left behind by a contested government, gangs have increased their foothold and routinely exhort working Hondurans, creating an atmosphere of fear and distrust.
In many asylum cases, the economic hardship is an unfortunate by-product of the types of persecution that are fully admissible as reasons for seeking asylum. Simply put, if you are too frightened of being arrested or beaten to leave your home, then it stands to reason that you are not free to go out and seek employment.
Courts have endorsed three basic standards to determine when economic mistreatment rises to the level of persecution.
The first standard was developed under a prior version of the INA, and it requires that economic mistreatment be “so severe as to deprive a person of all means of earning a livelihood.” For example, many Rohingya refugees in the U.S., who are still in contact with family members back Myanmar, report that those they left behind are systematically denied employment based on their ethnicity.
A second standard requires that an applicant demonstrate “a probability of deliberate imposition of substantial economic disadvantage” based on one of the protected grounds enumerated in the statute.
The third standard employed by courts requires that applicants demonstrate “economic restrictions so severe that they constitute a threat to an individual’s life or freedom.”
Prior to 1965, the legal standards for seeking asylum included the phrase,” physical persecution”. After that, the word “physical” was dropped which broadened the definition (thus the documentation requirements) of persecution, but also opened the phrase up to broader interpretation.
In the end, pleading an asylum case based on economic status is pretty hard and can simply come down to the individual judge who is reviewing your case. So, looong answer short, you can factor in economic pressures but can’t really use it as the only reason for seeking asylum.
TIP: Mom was right: never fib. Your story must be true and accurate. If you are found out to be elaborating, exaggerating or, even worse, borrowing someone else’s story, you will be permanently banned from applying for asylum in the U.S.