The news has been filled recently with commentary about the current administration's immigration policy, including children being separated from their parents at the border and placed in makeshift housing. Proponents of the policy claim that the separations are justified because the parents broke the law by entering the country illegally. Opponents counter that many of the parents were seeking asylum for themselves and their children, and under U.S. law, seeking asylum is not illegal. But what does "seeking asylum" mean?
Asylum, in the context of immigration, has a specific legal meaning. People flee their home countries for a variety of reasons, but simply seeking a better life does not mean one is seeking asylum. In order to be granted asylum, you must show:
Furthermore, the persecution that is the basis for your claim of asylum must be caused either by the government of your home country, or by a group that the government is unable to control or unwilling to control, such as the gangs that are rampant in many Central American countries such as Honduras, Guatemala, and El Salvador.
If you are granted asylum, you can eventually get a green card, and, after a time, become a naturalized U.S. citizen. Being granted asylum also means you can get authorization to work in the United States. But being granted asylum can be more difficult than it seems from the information above.
You need to be in the United States to apply for asylum. You can do this under three circumstances: as a defensive move if you are in removal proceedings; as an affirmative move if you are not in removal proceedings, even if you are out of status; and at the border or port of entry. Most of the cases you are hearing about in the news fall into this last category.
Because it is necessary to be physically present in the United States to apply for asylum, people seeking asylum may cross the border without previous authorization to do so. In other words, they are not officially asylum seekers until they cross the border and request asylum.
Even if you meet all the criteria for asylum, you may be denied asylum if certain other facts are true. For instance, if you yourself have assisted in persecution of others in your home country, you may be denied asylum. Likewise, if you have been convicted of a "particularly serious crime,"you will not qualify for asylum. What is determined to be "particularly serious" is determined on a case-by-case basis, but there is evidence that some crimes generally considered minor may fall into this category. The law states that an aggravated felony constitutes a "particularly serious crime."
Unsurprisingly, if you have been involved in terrorist activity, or can otherwise be considered a threat to the security of the United States, your asylum application will be denied. Unfortunately for many asylum seekers, the definition of these terms can be fairly broad. The U.S. government may find that you have "engaged in terrorist activity" if you have provided so-called "material support" to a terrorist group, such as an established gang.
You may have heard on the news about a woman who was kidnapped with her husband by a militant group in El Salvador. The gang made the man dig his own grave, then made the woman watch as they shot him. They then forced her to work as their slave. The U.S. government, under the current administration, claimed that she was not entitled to asylum because she had provided "material support" to a terrorist group.
The Board of Immigration Appeals judge ruled that "material support" may be "virtually anything that is provided to a terrorist organization that supports their overall mission that they would otherwise need to seek somewhere else." In the case referred to above, the judge refused to make an exception for support given under duress, even though the woman had every reason to fear for her life. She was deported from the United States.
It is not legally required to have an attorney to apply for asylum, whether you are doing so affirmatively or defensively. But because it is relatively easy for the government to find a reason to deny asylum, and because many asylum seekers are not well-educated, do not speak much English, and are unfamiliar with the system, at least some consultation with an experienced immigration lawyer before applying for asylum is strongly recommended.
In addition, if you apply for asylum, and that application is determined to be a frivolous (baseless) application, you can be permanently barred from being granted asylum in the United States. With so much at stake in an application for asylum, it is best to make the strongest petition possible with all the support you can get.
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