For most of its history, the U.S. had no law providing for the admission of refugees. Following World War II, the U.S., along with many other countries, realized the need for comprehensive laws on the subject. Numerous laws were passed to allow the admission of war refugees, but the programs they created tended to provide only for emergencies and were effective for only short periods. In 1965, a seventh preference immigration category was created that provided for the annual admission of 17,400 people as refugees. To be considered a refugee under this law, the person must have been persecuted or fear persecution on the basis of race, religion or political opinion. In 1980, the Refugee Act was passed. This law implemented the United Nations Protocol on the Status of Refugee, which the U.S. had joined in 1968. It created a permanent procedure for the admission and resettlement of refugees.
What is a refugee?
According to the Immigration and Nationality Act (INA), a refugee is defined as “any person who is outside of any country of such person’s nationality . . . 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.” Current, past, and well founded fear of future persecution are all qualifiers for application.
There is no fee to apply for refugee status.
What is the difference between refugees and asylees?
Both refugees and asylees must satisfy the above definition. The two terms are virtually identical, but they differ most notably on two stipulations. Asylees must make their applications while inside the U.S, while refugees must apply outside of their home country, but also outside of the U.S. Additionally, refugees must obtain a referral from the United Nations High Commissioner for Refugees (UNHCR) to accompany their application.
Can refugee and asylee status be denied?
In some cases, claims may be denied. Following is a list of conditions that will lead to a mandatory denial of refugee or asylee status.
- The applicant’s concerns can be reasonably assuaged by internal relocation
- The applicant ordered, incited, assisted, or otherwise participated in the persecution of others
- The applicant has been convicted of a particularly serious crime
- The applicant has been convicted of a serious nonpolitical crime
- There are reasonable grounds for regarding the applicant as a danger to U.S. security
- The applicant is found to be involved in terrorist activities
- The applicant has been firmly resettled in another country prior to filing for status in the U.S.
- The applicant previously applied for and was denied status, unless circumstances have changed to the extent of affecting the applicant’s eligibility
- If the applicant fails to file within the 1 year time limit (asylees only)
- The application was filed before April 1, 1997
Applicants may also be denied status based on the discretionary ruling of an Immigration Judge. The applicant may also be removed to a safe third country pursuant to a bilateral or multilateral agreement.
Time limits on filing and safe-third country bars are inapplicable to unaccompanied minors (under 18 years old).
How can I be granted asylum or refuge because of my race?
There have been few cases dealing with this ground for refuge. Winning refuge on this basis requires proof that the government either engaged in persecution or encouraged others to persecute someone because of their race. One factor that makes this ground difficult to prove is that the persecution must be individualized; that is, the applicant must be singled out of persecution. This has the effect, in some cases, of denying eligibility to members of groups that are subject to widespread persecution, because the applicant cannot prove that they individually face danger in place of generalized risk.
How can I be granted asylum or refuge because of my religion?
Persecution on the basis of religious beliefs is a much more common basis on which asylum and refuge are granted. Here again, though, the applicant must prove that the persecution comes from the government or is motivated by the government. Discrimination or harm the applicant experiences that comes from individuals, even if because of the applicant’s religion, will not support an asylum application unless the government makes clear that it supports the activity.
How can I be granted asylum or refuge because of my nationality?
This is an infrequently used basis for asylum and refuge. Even if people in their country of residence harm members of a certain nationality, they still must show that the government of that country either engaged in persecution or encouraged it, or that it is unwilling to provide protection. Also, if a country discriminates equally against all non-nationals, asylum cannot be granted.
How can I be granted asylum or refuge because of my membership of a particular social group?
This is the most litigated basis for asylum. Determining what constitutes a social group has proven difficult. Some courts have defined it as an identifiable group of people seen as a threat to the country from which they are seeking refuge. Others definitions encompass groups of people tied together because of a common, fundamental characteristic which they are incapable of changing. One court has even found that a family unit constitutes a social group. The Board of Immigration Appeals (BIA) defines a social group as a unit of people who share a common, immutable characteristic, whether an innate part of their existence (such as gender), or a common experience (such as military service). This characteristic, while persecuted in the applicant’s country of origin, is protected within the U.S., and as such members of particular social groups are said to share a “protected characteristic.”
The U.S. does not extend protection to gangs or similar groups. The border children crisis of the summer of 2014 has raised the issue of whether the thousands of children from Guatemala, Honduras and El Salvador are members of a persecuted social group.
How can I be granted asylum or refuge based on my sexual orientation/gender identity?
Gender identity and sexual orientation are two different issues, and shall be discussed here together because of the many ways they overlap. Individuals who seek asylum or refuge based on their sexual orientation/gender identity are generally grouped with other asylees and refugees who base their status on their membership of a particular social group (discussed above). Sexual orientation/gender identity may also be related to other grounds for application, such as political opinion or religious affiliation. However, due to the increasingly relevant and evolving nature of gender and sexuality topics, it is important to discuss the particular steps to seeking asylee or refugee status based on one’s sexual orientation/ gender identity.
In 2012, USCIS published a comprehensive process on adjudicating Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) refugee and asylum claims. Sexual orientation, gender identity, and having an intersex condition can be classified as either inherent or fundamental; they are “protected characteristics” which LGBTI individuals either cannot or should not be expected to change about themselves. Individuals who feel persecuted or prosecuted based on their LGBTI status can seek asylee or refugee status in the US. Like other asylees and refugees, they may be asked to provide corroborating evidence of their status, as long as that evidence can be reasonably obtained.
With the passage of the Windsor decision in the Supreme Court overturning the Defense of Marriage Act, same sex spouses can now qualify as spouses in asylum cases.
How can I be granted asylum or refuge because of my political opinion?
This is the most often used basis for an asylum or refuge application. In 1992, the Supreme Court issued an opinion significantly restricting this basis, ruling that the political opinion that matters is that of the victim, and that merely resisting government action is not alone enough to show persecution. Nor, according to the Board of Immigration Appeals, is being caught up in general civil unrest sufficient for a claim of asylum or refuge unless the government knows that the person disagrees with it politically.
One important development in this area is the idea of an imputed political opinion. In these cases, when it is obvious that the government is acting on the basis of what it believes to be an opposing political opinion, no evidence of the applicant’s actual opinion or that the applicant’s actual opinion or that the applicant’s actual opinion or that the government knew it, is required.
In 1996, Congress adopted a law making coercive family planning a form of persecution based on political opinion. Under this law, if a person can show they were forced to terminate a pregnancy or be sterilized, they are deemed to have shown persecution on the basis of political opinion.
Are there other ways of being granted asylee or refugee status?
There are many conditions under which one can apply for asylee or refugee status. The above categories are just broad explanations of the most common avenues for application. Generally, an individual qualifies for asylee status if they are fleeing persecution in their home country. Persecution can take many shapes, including, but not limited to:
- Custodial interrogation
- Rape or sexual assault
- Forced medical examination
- Physical harm or detention
- Emotional trauma
- Economic deprivation
- Stripping citizenship
- Civil war
- Laws of general application
- Prosecution (not generally, but arguments can be made for prosecution amounting to persecution)
- Intent to harm distinct from persecution
- Breach of confidentiality of asylum
- Government unable or unwilling to control persecutors
There are also certain groups designated for refugee protection, including:
- Iraqis employed by U.S. government in Iraq
- North Koreans
- Any persons from certain countries (Vietnam, Laos, Cambodia, China, North Korea, countries of former Soviet Republic, nations of the Greater Middle East Region) who personally deliver into custody any living American missing or held prisoner, as well as their parents, spouse, and children
- Spouses and children of refugees
Do I have any other options?
There are other protected groups, such as Temporary Protected Status (TPS) aliens. For more information about these special groups, visit https://www.visalaw.com/our-practice-areas/immigration-court-humanitarian/temporary-protected-status/.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.