Asylum & Refugee Protection

Asylum and Refugee ProtectionUnder U.S. law, asylum may be granted to aliens who can establish they have well-founded fear of persecution if they were forced to return to country of citizenship or last habitual residence. The persecution must be on account of political opinion, race, religion, nationality, or membership in a particular social group. We have successfully helped our clients from various countries obtain asylum in the U.S. Our Firm is dedicated to helping people escape persecution in their home countries by securing them a safe haven in the U.S. Asylum can be granted to individuals who are just arriving to the U.S. or to people who are already physically present in U.S. Those individuals arriving in the U.S. may ask for asylum at the port of entry. However, individuals already in the U.S. must file their Application for Asylum and Withholding of Removal with the Bureau of U.S. Citizenship & Immigration Services within one year of their arrival. This filing deadline may be excused if the alien can demonstrate changed or extraordinary circumstances.

Asylum in the United States

The Law Offices of Grinberg & Segal, PLLC is dedicated to helping clients seek asylum. Asylum allows immigrants to escape the persecution that they suffered in their homelands and come to America to start a new life. It also helps those people who did not suffer persecution in the past, but have a legitimate fear of persecution if they returned home.

Overview of the Affirmative Asylum Scheduling Bulletin

Often, those in the third category face long wait times from the filing of an affirmative asylum application to the scheduling of an asylum interview. In order to give applicants in the third category an idea of when they may expect their asylum interview to occur, the USCIS publishes a monthly “Affirmative Asylum Scheduling Bulletin.” This article explains how the Bulletin works and how to use the Bulletin.

LGBT Asylum In The Usa

Are you a member of the gay, lesbian, bisexual, transgender, or transsexual (LGBT) community? Do you fear harm, persecution and/or mistreatment in your native country due to your sexual orientation or gender identity? The U.S. Government has recognized asylum claims based upon homosexuality since 1994. Currently, gays, lesbians, bisexuals, transgender, and transsexual individuals may seek asylum based upon membership in a particular social group. As with any applicant for asylum, you must demonstrate you have genuine fear of returning to your native country and that a reasonable person in your situation would also fear persecution.

Sexual Orientation

As discussed in Asylum and Refugee Protection, not every persecution warrants protection by the U.S. law. Instead, following international law, U.S. asylum jurisprudence recognizes only five enumerated grounds, based upon which persecution may lead to a grant of the discretional protection by the U.S. Government. These grounds exist when one central reason in the persecution of the applicant in his or her country of last abode can be shown to have been on account of one of the following: the applicant’s race, ethnicity or national origin, political opinion, religion and/or membership in a particular social group. This showing must be through credible evidence and to the satisfaction of either an immigration officer or a judge.

Persecution & Asylum Law

Protection of refugees fleeing persecution is the heart of the U.S Asylum Law. A “refugee” is defined in the Immigration and Nationality Act (INA) as: any person who is outside any country of such person’s nationality, or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Readmission of Asylees and Refugees After International Travel

This article will use applicable statutes, regulations, and an important Immigration and Nationality Service (INS) memorandum issued on November 23, 1999, titled “Readmission of Asylees and Refugees Without Travel Documents”1 (henceforth, “Cooper Memo”) to answer the following questions regarding travel by persons in the United States as asylees and refugees.

The ABT Settlement Agreement

In 2013, United States Citizenship Services (USCIS) and Executive Office for Immigration Review (EOIR) reached a settlement agreement (henceforth “ABT settlement agreement”) that was approved in BH., et al. v. United States Citizenship and Immigration Services, et al., No. CV11-2108-RAJ (W.D. Wash.). The ABT settlement agreement changes the manner in which USCIS and EOIR adjudicate the Form I-589, Application for Asylum and for Withholding of Removal, and the Form I-765, Application for Employment Authorization.

Bars to Applying for Asylum

There are three bars to applying for asylum that were created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which became effective on April 1, 1997. This article will examine the rules regarding the three asylum application bars and exceptions that certain aliens may be eligible for in order to file for asylum.

Bars to Eligibility for Asylum

The decision on whether to grant an asylum applicant asylum in the United States is discretionary and based on the specific facts of the asylum claim. However, under certain situations, an asylum applicant may be barred from asylum eligibility regardless of the other points that favor his or her claim for asylum claim.

Overview of Refugee Status

“Refugee” has a very specific meaning in U.S. immigration law. A refugee is a foreign national who was persecuted in his or her country of nationality or last habitual residence and is either unable or unwilling to avail him or herself to the protection of his or her country of nationality or last habitual residence. Refugees are distinguished from asylees, who may apply for status from within the United States, in that in order to apply for refugee status; the alien must receive a referral to the U.S. Refugee Admissions Program (USRAP) from abroad.

Jang v. Lynch: North Korean Citizens Who Become South Korean Citizens Are Subject to the Firm Resettlement Bar

On December 22, 2015, the Ninth Circuit filed its decision in Jang v. Lynch (Dec. 22, 2015) in which it held that, notwithstanding the North Korean Human Rights Act of 2004, a North Korean citizen who availed himself to South Korean citizenship is subject to the “firm resettlement bar” to asylum. This article will look at the facts of the case, the relevant statutes, and the reasoning underlying the Ninth Circuit’s decision.

Definition of "Torture" for Purpose of Relief Under the Convention Against Torture

Under the Convention Against Torture (implemented through Department of Homeland Security (DHS) regulations), an alien who is subject to a final order of removal may seek withholding of removal, or, if he or she is subject to a mandatory denial ground for withholding, deferral of removal. In order to be eligible for relief under the Convention Against Torture, the alien must demonstrate that he or she would “more likely than not” be tortured in the country to which he or she had been ordered removed. In this article, we will examine administrative and judicial precedent relating to establishing eligibility for withholding of removal and deferral of removal under the Convention Against Torture.

BIA Invites Briefs on Whether Persecutor Bar Contains a Duress Exception

On August 8, 2016, the Board of Immigration Appeals (BIA) issued an amicus invitation regarding whether there exists a “duress exception” to the “persecutor bar” to asylum under section 208(b)(2)(A)(i) of the Immigration and Nationality Act (INA) and to withholding of removal under section 241(b)(3)(B)(i). The amicus invitation allows attorneys to file a Request to Appear as Amicus Curiae along with a brief discussing the issues presented in the amicus invitation. The deadline for filing is September 7, 2016.

October Affirmative Asylum Scheduling Bulletin

On October 6, 2016, the United States Citizenship and Immigration Services (USCIS) released its most recent edition of the Affirmative Asylum Scheduling Bulletin. The Affirmative Asylum Scheduling Bulletin is published monthly by the USCIS. It provides the average filing date of those scheduled for asylum interviews in the previous three months at each of the USCIS’s eight asylum offices.

Matter of L-T-P-, 26 I&N Dec. 862 (BIA 2016): Determining When Cuban Paroled After Mariel Boatlift Entered as a Refugee

On December 1, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of L-T-P, 26 I&N Dec. 862 (BIA 2016). In this decision, the Board held that in order to procure adjustment of status under section 209 of the Immigration and Nationality Act (INA), an applicant must either have been admitted as a refugee or granted status as an asylee. The Board held that the respondent in the instant case, who was paroled into the United States on August 25, 1980, with a Form I-94, Arrival Departure Record that was stamped “Cuban/Haitian Entrant (Status Pending) that indicated the purpose of his parole was for “Cuban Asylum,” was not eligible for adjustment of status under section 209 because he had neither been admitted as a refugee nor granted asylum.

Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016): When an Untimely Asylum Application Can be Frivolous

On December 13, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016). In this decision, which arose from the jurisdiction of the Third Circuit, the Board distinguished the case from the Third Circuit decision in Luciana v. Att’y Gen. of the U.S., 502 F.3d 273 (3d Cir. 2007) in finding that an untimely asylum application can be found to be frivolous where the applicant made a misrepresentation pertaining the timeliness of the application. For cases arising outside of the Third Circuit, the Board reaffirmed that it stands by the Matter of X-M-C-, 25 I&N Dec. 322 (BIA 2010), which affords Immigration Judges with broader authority to find that an untimely asylum application was frivolous than does Luciana. In this article, we will review the factual and procedural history, the Board’s analysis and decision, and what the new precedent means going forward.

Temporary Suspension of Travel of Certain Refugees Under President Trump's March 6 Travel Order

On March 6, 2017, President Donald Trump signed an Executive Order titled “Executive Order Protecting the Nation From Foreign Terrorist Entry Into The United States” (“Travel Order”). This Executive Order revokes and replaces an Executive Order of the same name issued by President Trump on January 27, 2017. In this article, we will examine the new Travel Order in detail as it pertains to refugees, specifically to the 120-day suspension of refugee travel.

Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017) - Personal Motivation Irrelevant to Persecutor Bar Analysis

On May 5, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of J.M. Alvarado, 27 I&N Dec. 27 (BIA 2017). In the decision, the Board held that the persecutor bar in section 241(b)(3)(B)(i) of the Immigration and Nationality Act (INA) applies to an alien who engaged in assisted or otherwise participated in proscribed persecution without regard to the alien’s personal motivation for assisting or participating in such persecution. In this article, we will examine the facts and procedural history of the case, the Board’s reasoning and decision, and what the decision means going forward.

Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017): Asylum Applications Based on Family-Based Particular Social Groups

On May 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). In the decision, the Board established general rules for determining when an individual who claims membership in a particular social group comprised of his or her own family can be considered to be the member of a particular social group for purposes of seeking asylum and/or withholding of removal. The Board held that “[w]hether a particular social group based on family membership is cognizable depends on the nature and degree of the relationships involved and how those relationships are regarded by the society in question.” Secondly, the Board held that, in order to establish eligibility for asylum or withholding of removal based on membership in such social group, the asylum applicant “must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” In this article, we will examine the facts of the case, the Board’s reasoning and decision, and the effect of the new precedent going forward.

Eighth Circuit Rejects Asylum Claim Based on Part On Applicant's Fear of Being Perceived to be a Witch

On June 26, 2017, the United States Court of Appeals for the Eighth Circuit released an interesting opinion in an asylum case titled Edionseri v. Sessions, — F.3d —— (8th Cir. 2017). Writing for a three-judge panel, Judge Morris Arnold rejected the petition for review of an individual who had been denied asylum, withholding of removal, and relief under the convention against torture based on the claim that he feared being persecuted as a suspected witch in his native Nigeria. In this article, we will examine the facts and procedural history and the Eighth Circuit’s reasoning and decision.

Matter of B-R-, 26 I&N Dec. 119 (BIA 2013): Asylum/Refugee Applications and Dual Nationality

On May 3, 2013, the Board of Immigration Appeals issued a published decision in the Matter of B-R-, 26 I&N Dec. 119 (BIA 2013). The Board held that an alien who is the citizen or national of multiple countries and who does not fear persecution in one of those countries does not meet the statutory definition of “refugee” under section 101(a)(42) of the Immigration and Nationality Act (INA). This affects applicants for asylum and applicants for refugee status, both of which require the applicant to meet the statutory definition of “refugee.”

Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017) - Asylee Adjustment Terminates Asylum Status

On August 3, 2017, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017). The Board reached two important conclusions involving asylee adjustment. First, the Board held that an alien who adjusts status as an asylee under section 209(b) of the Immigration and Nationality Act (INA) to that of an alien lawfully admitted for permanent residence is no longer an asylee. In short, the adjustment terminates the alien’s asylee status. On this point, the Board clarified its prior published decision in the Matter of C-J-H-, 26 I&N Dec. 284 (BIA 2014). Second, the Board held that the restrictions on removing an asylee found in section 208(c)(1)(A) of the INA do not apply to an alien who was granted status as an asylee, but who subsequently adjusted status to lawful permanent resident (LPR) status under section 209(b) of the INA. In this article, we will examine the Matter of N-A-I- decision in detail.

President Trump Sets FY 2018 Refugee Admissions Cap at 45,000

On September 29, 2017, President Donald Trump issued a Presidential Memorandum to Secretary of State Rex Tillerson setting the refugee admissions cap for fiscal year 2018 at 45,000. The 45,000 refugee admissions cap for fiscal year (FY) 2018 is significantly lower than the cap of 110,000 that was set by the Obama Administration for fiscal year 2017, although that cap was subsequently reduced by an Executive Order issued by President Trump. The refugee admissions 2018 cap is also the lowest cap since 1980. In this article, we will examine the fiscal year 2018 refugee admissions cap announcement and what it means going forward.