Brian D. Lerner Immigration Attorney & Deportation Lawyer Blog

Question: I live in a country that is very dangerous. It is not democratic and I decided to protest against the government in order to try to make some democratic changes. I was in a protest rally. Unfortunately, the government sent its soldiers out and killed many people. I escaped. However, the government suspects that I was in the protest rally (as well as distributing e-mails and other pro-democracy pamphlets.) I am now afraid for my life. I went to the United States Consulate in my home country and got a visa to the United States I basically lied and said I just wanted to visit the United States I was desperate to get out of the country. Now I am in the United States Is there anything I can do?

Answer: You can certainly apply for asylum in the United States Asylum provides a haven in the United States for certain persecuted people of the world. The Attorney General may grant asylum to aliens present in the United States who have been the subject of persecution in their home country. Because of the broad rights granted to asylees, and concern that many people who apply for asylum do not actually qualify for it, all asylum applicants must meet stringent substantive and procedural requirements.

Question: How can I qualify for asylum?

Answer: To establish eligibility for asylum, you must show that you are a refugee. The term ‘refugee’ means 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.

Therefore, asylum is not just for those who apply for ‘political’ asylum. The United States opens the doors to persons whom are subjected to religious, nationality and other categories of persecution.

Question: I have not actually been persecuted in the past. I am just deathly afraid to go back because of what will happen to me. Is this a problem?

Answer: No. If you can show that you have a well founded fear of future persecution, then it is not necessary to show past persecution. If on the other hand, you were able to show past persecution, then it is presumed you will suffer future persecution. Thus, you have more of a hurdle to get over, but if you will be persecuted upon your return to your home country, you are certainly eligible to apply for asylum.

Question: If I am granted asylum, can my wife and children come to the United States with me and will I be able to work?

Answer: After an alien is granted asylum, he or she is called an asylee. His or her spouse and children may be granted permission to reside in the United States. An asylee will receive appropriate authorization to enable him or her to work in the United States. Finally, because asylum is a temporary status, the asylee can apply for other, more permanent, types of status in the United States.

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Question: I was persecuted in the past in my home country. The government came after me because I was a political activist and I spoke out about the corruption of the government. They brought me to prison, ransacked my home and threatened to tortured me and my family. I barely escaped to the United States and am now claiming asylum. However, the government has changed and they are unlikely to persecute me on the same grounds as in the past. In fact, while I will still suffer certain retribution by certain persons, I will not actually be persecuted based upon political opinion if I return to my home country. Do I still have a chance to win asylum in the United States?

Answer: Previously, you would have little chance of winning asylum. However, there has been a new regulation issued which addresses this very issue. The new provision provides for discretionary grants of asylum to victims of past persecution who no longer reasonably fear future persecution on account of a protected ground upon removal to his or her home country. Such an applicant “may be granted asylum, in the exercise of the decision maker’s discretion, if . . . [t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.” In other words, an applicant who (1) is a legitimate victim of past persecution and (2) demonstrates a reasonable possibility of “other serious harm” upon deportation, is eligible for asylum under the new regulation. This regulation will come into effect when the Immigration has presented evidence to show that there are changed country conditions (in your favor) or that you can find some safe harbor somewhere in your home country.

Question: What will qualify for “other serious harm”?

Answer: First, the Justice Department now believes it is appropriate to broaden the standards for the exercise of discretion in such cases. For example, there may be cases where it is appropriate to offer protection to applicants who have suffered persecution in the past and who are at risk of future harm that is not related to a protected ground. Therefore, the rule includes, as a factor relevant to the exercise of discretion, whether the you may face a reasonable possibility of “other serious harm” upon return to your country of origin or last habitual residence. As with any other element of an asylum claim, the burden is on you to establish that such grounds exist and warrant a humanitarian grant of asylum based on past persecution alone.

Therefore, it is now within the discretion of the Immigration Judge and the Board of Immigration Appeals to grant asylum to victims of past persecution whose fear of future persecution has been rebutted if you can show (1) “compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,” OR (2) “a reasonable possibility that you may suffer other serious harm upon removal to that country. At this point it is not clear what is meant by “other serious harm”. However, it is a lessening of your burden in proving asylum when you can show the past persecution.

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