The law which protects persons fleeing persecution comes from international agreements and domestic laws in the United States. The main international agreement concerning asylee and refugee status is the 1967 United Nations Protocol Relating to the Status of Refugees. The source of domestic law is found in the Immigration and Nationality Act.
A "refugee" is generally defined as a person who is outside of his/her country of nationality who is unwilling or unable to return home on due to past persecution or because of a "well founded fear" of "persecution" on account of race, religion, nationality, membership in a particular group, or political opinion. The courts have defined "fear" as a "genuine apprehension or awareness of danger in another country". "Persecution" has been defined as "a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive". Protection has also been extended to persons who are fleeing gender based persecution, such as fear of female circumcision, as well as to persons who are fleeing from coercive population control programs, such as forced sterilization or involuntary abortion. Only persons who are physically outside the U.S. (and not at a U.S. border) may qualify as refugees. On the other hand, an "asylee" is a refugee who is physically inside the U.S. or at a U.S. border. Thus, there are two ways that an asylee or refugee may qualify for such status: by showing (1) past persecution; or (2) a well founded fear of future persecution, on account of one of these above protected grounds.
A showing of past persecution may give rise to a presumption that the alien has a well founded fear of future persecution. Such a showing of past persecution, in and of itself, is enough, and therefore the applicant is not required to even show that he or she has a well founded fear of future persecution. However, this presumption may be rebutted (or countered) where it can be shown that the country conditions in the applicant's homeland have changed to such an extent that it is no longer reasonable for the applicant to fear persecution. But even if conditions have changed in the applicant's homeland, if the applicant can demonstrate that he or she has "compelling reasons" for being unwilling or unable to return home, such as the applicant's age, health, and/or family ties, asylum may still be granted.
In order to show a "well founded fear", an applicant must show that a reasonable person in his or her particular circumstances would fear persecution if they were to return home. A well founded fear has two components: (1) a subjectivecomponent (ie. that the applicant genuinely fears persecution); and (2) anobjective component (ie. that based upon objectively verifiable real world conditions, there is a reasonable possibility that the applicant would suffer persecution if the applicant were to return home). Under applicable law, the applicant must therefore show that (a) he or she possesses a characteristic that a particular persecutor seeks to overcome by punishing any individual who possesses it; (b) that the persecutor is either aware or could become aware that the applicant possesses such a characteristic; (c) that the persecutor has the capability of punishing the alien; and (d) that the persecutor has the inclination to punish the alien on account of the characteristic.
Even if an applicant qualifies for asylum, the Immigration Nationality Act provides for a mandatory denial of an asylum application in certain circumstances, including but not limited where:
1. The applicant already applied for and was denied asylum or did not file his asylum claim within 1 year after entering the U.S. This particular law went into effect on April 1, 1997. However, there are exceptions to this rule where the applicant can show that (1) country conditions in his or her home country have changed; or (2) extraordinary circumstances, beyond the applicant's control, caused the applicant to fail to request asylum in a timely fashion;
2. The applicant has "firmly resettled" in another country. This would apply where an applicant was already granted or offered asylum in a third country. Firm resettlement would also apply where an applicant had the opportunity to apply for asylum in a third country but did not, preferring instead to seek asylum in the U.S.;
3. The applicant ordered, incited, assisted or participated in the persecution of others;
4. The applicant was convicted of a "particularly serious" crime in the U.S. and constitutes a danger to the community. Aggravated felonies and drug offenses have been held to constitute particularly serious crimes which render an applicant a danger to the community; and
5. The applicant is inadmissible to the U.S. because he or she is a terrorist and/or constitutes a danger to the security of the U.S.
If you have questions about filing a NUNC PRO TUNC Asylum application, go to our NUNC PRO TUNC ASYLUM Page for more information.
If you have questions about whether you may qualify for asylum or you need representation with a pending asylum application or case, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.