Asylum and Witholding of Removal

Winning an Asylum Case

By Davidson & Seseri

An applicant can greatly increase the likelihood of being granted asylum, if he or she understands the U.S. laws concerning asylum and how those laws are implemented and processed by the asylum office and the immigration courts.

The Asylum Laws

An individual may be granted asylum from their country of nationality or last habitual residence if the fear of persecution falls into one of five categories: race, religion, nationality, membership in a particular social group and political opinion. The law requires that the persecution occur “on account of” the persecutors’ motivation to persecute the asylum applicant, which really means the persecutor must want to harm the applicant based upon one of these five grounds. The persecutor’s motivation must be one central reason for the persecution and the law requires the applicant to establish that relocation to escape persecution within the applicant’s country is unreasonable.

The applicant must also document and provide evidence when it is reasonable to do so. When a document is not available, the applicant must explain the reason why a document is unavailable. The inability to provide corroborating evidence can impact the credibility determination in an asylum case, thus it is important that the applicant make every effort to obtain evidence supporting their claim of persecution. Finally, the applicant cannot have a safe haven in another country, which usually refers to firm resettlement or another citizenship. It is the burden of the applicant to meet all these requirements when seeking asylum, and failure to do so, will usually result in a denial.

Persecution is often referred to as a threat to “life or freedom,” which means severe physical harm or detention such as jail or forced internment. Whether the harm is severe enough is left to the discretion of the asylum officer or judge. We do know some parameters based upon prior case law issued by courts. Rape is severe physical harm that is considered persecution whereas a random beating without significant medical treatment may not be severe enough. Persecution is divided between past persecution and fear of future persecution.

If the applicant has already suffered severe harm in the past, then there is a rebuttable presumption that he or she will suffer persecution in the future. Essentially, the rebuttable presumption is that if country conditions have not changed since the harm occurred, then asylum will be granted. Demonstrating a reasonable fear of future persecution requires evidence of a predictable threat to the applicant’s life or freedom in the future. The fear of future persecution is a hypothetical determination of what may happen to the applicant if they go back to their country. Often, establishing a fear of future persecution requires producing evidence about similarly situated individuals in the country of persecution. It is important to also document what interest the persecutor has in the applicant even after his or her departure, through the persecutors contact of family and friends.

The five grounds for being granted asylum concern the persecutor’s motive for pursuing the applicant. The persecutor, who may or may not be the government, must be motivated to persecute that individual because it views the applicant as possessing a characteristic that fits within one of the five grounds for which asylum is granted: nationality, race, religion, membership in a particular social group, or political opinion. The persecutor’s motivations are often difficult to ascertain, which is a problem for asylum applicants since the law requires the applicant to prove the persecutor’s motivation.

Take, for example, an applicant who flees Syria because he is a doctor and his hospital in his village has been bombed by the Syrian government. It is possible the bombing occurred because he is a doctor and the Syrian government opposes this doctor for political reasons such as his assistance of rebels. However, It may also be reasonable to believe the doctor’s hospital was bombed because it was in a village occupied by forces opposed to the government, which circumstance does not establish the doctor was the target. It is not always easy, therefore, to establish the persecutor’s motive in an asylum case, but it is a crucial step that if not adequately established, makes the applicant vulnerable to a denial of his or her  case.

There are often circumstances in which the motivation of the persecutor is clouded by multiple reasons for wanting to harm the applicant. These are often referred to as “mixed motive” cases. The law requires that the motivation be connected to one of the five grounds and be one central reason for the desire to harm the applicant. It does not mean it must be the only reason, but it also cannot be buried in the periphery of the persecutor’s thoughts. This means the asylum applicant must work hard to find evidence that the persecutor’s motive is tied to one of the five grounds even though the persecutor may also be motivated by other reasons unrelated to a protected ground.

The applicant is required to establish why relocation is not reasonable within the country of nationality or last habitual residence from which he or she seeks asylum. If the persecutor is the government, there is a presumption that the government can use its networks to persecute the applicant throughout that nation. However, that presumption disappears if that government has lost control of certain areas of the country to rebels, foreign invaders or even gangs, in which case the applicant may also have to prove that it is not reasonable to reside in these territories for other reasons.

If the persecutor is a nongovernmental persecutor, such as a gang or individual, then the applicant has initially to prove that relocation is not reasonable throughout the country that was fled. The law requires a reasonable rationale for not wanting to relocate, which might consist of another kind of harm, intense poverty, geography (i.e desert or uninhabited mountains), lack of appropriate healthcare or education. The possible reasons for not wanting to relocate might be endless, but the asylum officer must agree that that it is reasonable, which means the rationale offered for not wanting to relocate must be understandable, logical and supportable. If the applicant is old and suffers some illness, the option to move to a rural area without adequate healthcare is more understandable then it is for someone who is young and healthy. Therefore, the reasonableness of the explanation may differ based upon factors individual to the applicant

The Process

The courts and the asylum offices know that it is the applicant’s responsibility to provide evidence establishing asylum eligibility. These officers and judges will ask many questions probing both the strengths and weaknesses of any asylum case, which response requires an applicant to be prepared to deal with all aspects of asylum law and to provide evidence whenever possible. It is not enough to have suffered great harm in the country the applicant fled if the motive of the persecutor is not established and connected to one of the five grounds upon which asylum can be granted. The necessity to produce evidence that addresses all aspects of asylum law is the applicant’s and failure to do so will normally result in denial. It is the burden created by asylum law that the applicant reasonably establish the persecutor’s motivation, the severity of the harm already suffered, the reasonableness of the applicant’s fear of future persecution, and that relocation is not a reasonable option.

How the applicant answers the questions asked by the asylum officer or immigration judge is incredibly important to the applicant’s credibility. The most important rule is to be direct and consistent when responding to questions. A common mistake of applicants is to try and give background to their answer initially so as to provide context to their direct answer. Instead, the direct answer must come first and then the explanation. If the question is “What injuries did you suffer?,” the appropriate response is to describe those injuries. If there is time, the applicant may subsequently describe the incident that caused the injuries. There are almost always opportunities to describe other aspects of any incident. The failure to respond directly will, if repeated frequently, strain the relationship between the asylum officer or judge and the applicant. The applicant may be viewed as evasive or hiding what really happened if the answer is not direct enough, which creates mistrust, if repeated frequently.

The asylum applicant must also know their asylum application and testify consistently with what has already been presented. If the case is well prepared, the asylum officer or judge has already become acquainted with most of the major incidents. Thus, the applicant’s testimony becomes a reaffirmation and clarification of what already was presented. Although there is some room for explanation and a few additional facts to highlight the more dramatic and important parts of the suffered harm,  testimony about a new incident is usually viewed with skepticism and risks a conclusion that the applicant has not been truthful. For this reason, it is extremely important for applicants to take care in including all major components of their claim in their original declaration rather than reserving important and impactful facts for the in-person interview before the asylum office or individual hearing before the immigration court.

The applicant need not be concerned about their confidential information being shared outside of the U.S. government if such information is included in their written material. The asylum office and immigration court will keep all information, including information provided in writing confidential. Finally, despite what some applicants believe, there is a place for emotion in both the written and oral testimony. The officers and judges understand that there is nervousness from all applicants that seeps into their testimony, so emotion is never totally absent. If recounting parts of the claim of persecution would normally evoke tears in the applicant, then it is appropriate to cry. Emotions are part of storytelling, and their presence in appropriate places and without pretense help convey the significance of a particular incident.

“What will happen to you if you return to your home country?” is the most common question asked. The applicant’s response is the most important answer because it frames the whole inquiry. And yet a common response we hear from applicants is “I don’t know what will happen to me.” This answer undermines the application because it is the applicant’s burden to prove his or her fear of persecution. Uncertainty suggests that the fear is not reasonably predictable, and that other outcomes that do not meet the asylum requirements are equally possible. Another response that is normally insufficient is “I fear I won’t find work if I go back.”  Although, this answer specifies a harm if the applicant returns to their country, it is not likely to be characterized as severe enough for asylum purposes. It is often viewed by the asylum officer or judge as a lesser harm often referred to as discrimination, which does not arise to past persecution or reasonable fear of future persecution.

At minimum, the answer reflects the applicant’s priorities do not align with asylum law and that the harm most feared by the applicant falls below a threshold of severity that is appropriate for a grant of asylum. To a certain extent this is counterintuitive, since unemployment over a long period may result in harm that exceeds severe physical harm or detention, but unemployment also reflects a range of possibilities that make it difficult to use as  the principal bases for seeking asylum.  Unemployment may last for months or years, concern a sector of society such as medical or professional, be geographically specific, or be governmentally imposed. It is difficult to establish that unemployment is a threat to life or freedom with so many variables. If the government will not employ the applicant, what about the private sector? If you cannot work as a journalist, why can you not work as a writer? The wrong answer undermines the case and shifts the burden to the decisionmaker to speculate as to whether an appropriate harm other than the one expressed is possible, and such speculation rarely results in a grant of asylum.

Updates to the asylum case are needed in the circumstance where it has been a lengthy period between the filing of the asylum application and the interview or hearing. This means the case must be updated because circumstances may have changed significantly in the home country of the asylum applicant. Asylum cases are decided by the asylum officer and immigration court at the time the decision is rendered rather than when it is filed. This gap is often a duration of several years. If the government is now controlled by a different party or laws have been passed that affect the applicant’s eligibility in the country where persecution is feared, the applicant must address these changes in their updated asylum application. If the persecutor is a group that targeted the applicant five years ago, the existence of that group must be confirmed and their continued interest in the applicant must be explained and documented. In its absence, the asylum officer or judge would have to speculate as to how those changes impact the applicant’s fear of future persecution. The more the decisionmaker has to speculate concerning what the future holds, the less likely asylum will be granted. Asylum is based upon a reasonable fear which reasonableness is often diluted by the passage of time and by changes within the country which the applicant fled. It is only the provision of new information and updated evidence that provides a reasonable bases to grant asylum despite the passage of time.

The proof of the motivation of the persecutor is not always easily established although it is an absolute requirement in asylum cases. In circumstances that attract media attention or international condemnation from other governments and human rights groups, it is possible to discern the motive of the persecutor by producing these articles and including them in the application. The more difficult circumstance is when the applicant is targeted for persecution but there is a lack of information that supports the claim in the media or country reports. Then, the applicant needs more personal documentation of the persecutor’s motivation such as prosecutions in court and affidavits of witnesses. There are also situations where the only evidence of the persecutor’s motive in harming or intending to harm the applicant comes from the actual conversations and oral pronouncement made by the persecutor to the applicant. In many circumstances, the asylum officer or judge may want to know exactly what was said to the applicants since  there is a tremendous focus on discovering if it reveals a motivation that fits within one of the five grounds upon which asylum is granted. In some circumstances where the motivation of the persecutor is exceedingly difficult to establish, it is helpful to consult with an expert who knows the country well and can express an expert opinion on the persecutor’s motivation.   In such cases, the motivation of the persecutor may be inferred by documenting what was done to individuals in similar circumstance to the applicant such as family or within an identifiable social group. The applicant who fails to address adequately the motivations of the persecutor and link it to one of the five protected grounds will likely lose his or her asylum case.

The law requires that asylum applicants document the most important aspects of the story. It is an ongoing responsibility that only ends when a decision is made in the asylum case. So, it is possible to supplement the application with additional documents weeks, months, or years later. Additionally, the law requires that documents be translated if they are in a foreign language and that they be accompanied by a signed translator’s certification from an individual who is fluent in both the foreign and English languages. The topics that are almost always documented are: nationality and relationship of immediate family (passports, birth certificates and marriage licenses); the applicant’s identification with one of the five grounds (government or religiously issued ID cards, baptismal certificates, political membership cards, letters from the societal or political organizations); the motivation of the persecutor (arrest reports court reports, media reports, witness statements); and the severity of harm suffered by the applicant in the past and a reasonable fear of future persecution (medical, hospital records and country conditions that establish individuals in similar circumstances have suffered severe harm).

The unreasonableness of relocation should also be documented especially if the persecutor is not the government through health or education studies, geographical and cultural studies, poverty reports, and if the persecutor is an individual or group media or scholarly articles of their operation nationwide. Finally, there are some documents that are always included in asylum cases. There usually are country or media reports that establish individuals in similar circumstances have been persecuted in the country from which the applicant fled, and if a central part of the story supporting the asylum application was witnessed by a family or friend, then it is probably necessary to have that individual who witnessed the event provide a consistent account of what they recall.

The above overview of asylum is not exhaustive because all cases need to be individualized to best support the applicant’s story. Since most cases have strengths and weaknesses, there is always a balancing act as to how best to highlight the strong aspects of the case and to diminish the importance of its weaknesses. The applicant, when preparing to testify, should practice answering questions that cover all topics important to asylum. Therefore, the best prepared applicant not only carefully prepares to describe the harm that has caused them to be afraid, but also prepares to discuss topics such as relocation and the motive of the persecutor.

This article is for informational purposes only. It is not meant to and cannot substitute the advice of and representation from a competent immigration attorney. Schedule a consultation with out attorneys at Davidson & Seseri. 

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