U.S. asylum law is made up of several different legal authorities, including U.S. immigration statutes and regulations, federal case law and international treaties and conventions. People who are outside of the United States may apply for refugee protection under the United Nations Protocol, to which U.S. is a signatory. People who have arrived in the U.S. or are physically inside the country may apply for asylum protection.
In order to qualify for asylum protection, an individual must meet the basic definition of a refugee: [A]ny 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 avail himself or herself of the protection of that country because of persecution or wellfounded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion.
What does it mean to be persecuted? The word itself is not specifically defined in the rules and regulations but through case law the courts have found that persecution exists in the following situations:
Serious violations of basic human rights
Target of persistent death threats and threats to property and business
Severe economic deprivation that threatens an individual’s life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution
Violation of one’s fundamental beliefs
In certain circumstances, physical harm to others, such as close family members
The persecutor must be either the government or a group of individuals that the government is unable or unwilling to control. In cases where the persecutor is not a state actor, an adjudicator will consider the efforts made to inform the government of threats or attacks, as well as governmental efforts to prosecute similar harm.
A person may be found to be inadmissible to the United States for many different reasons. These include three- and ten-year bars for unlawful presence; crimes involving moral turpitude (CIMTs); prostitution; simple possession of less than thirty grams of marijuana; certain medical inadmissibility; and misrepresentation. To overcome such an inadmissibility, an I-601 Waiver will need to be filed. The primary basis to qualify for an I-601 Waiver is to show “extreme hardship” to a qualifying relative. In some cases, one may also qualify by showing there has been criminal rehabilitation. If someone had been previously removed from the United States, an I-212 Waiver for prior removal is necessary and is not based only on extreme hardship to a qualifying relative, although such a hardship can be used to strengthen a case.
Sometimes there are complications that result in a waiver not being an option. Some of the worst complications are those that create permanent inadmissibility. These include false claims to U.S. citizenship, drug convictions or guilty pleas after age eighteen, gang memberships, and previous findings of marriage fraud or frivolous asylum. There is very little to be done after a finding was made in a prior immigration proceeding that there was a frivolous asylum claim made after April 1, 1997. However, in other instances it may be possible to challenge a finding of permanent inadmissibility. For example, it may actually be possible to show that a finding of marriage fraud was an error, especially if the marriage is still intact. It may be possible to argue that a vague drug crime is not a crime pertaining to possession of a controlled substance. A person who had made a claim to citizenship may have been completely unwilling. A person may truly not be a gang member. These are difficult cases but may be worth pursuing as it may very well be someone’s only opportunity to return to his or her family.
The waiver process changes constantly, as does immigration law itself. If you feel that you or someone you know requires assistance in this area please contact our office.