Asylum 101 American-Arab Anti Discrimination Committee March 27, 2015 Scott Bratton, Esquire Partner, Margaret Wong & Associates Jenna Peyton, Esquire Jennifer I Peyton Attorney at Law LLC

Where is the information? Immigration and Nationality Act (Section 208) USCIS.GOV website

What is asylum? Applicant bears the burden of proving that he is a refugee within the meaning of INA Section 101(a)(42)(A).

Definition of Refugee An applicant is a “refugee” if he or she is unwilling or unable to return to his country of nationality “because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”. INA Section 101(a)(42)(A).

Timely Filed Application

Timely filed? Applicant bears burden of establishing by clear and convincing evidence that application was timely filed within one year of last entry HOW? Plane ticket / admission record; if lacking, secondary evidence of transportation or supporting affidavits

First Exception to Timely Filed Requirement - Changed Circumstances? Material changes in the applicant’s country of nationality Changes in the applicant’s circumstances that materially affect his or her eligibility for asylum

Second Exception to Timely Filed Requirement – Extraordinary Circumstances? Serious illness or mental disability; Legal disability; Ineffective assistance of counsel; The applicant maintained TPS, lawful immigrant or non- immigrant status, or was given parole until a reasonable time before filing; Death or serious illness of representative or member of applicants immediate family; Asylum application filed timely but rejected and re-filed

Credibility REAL ID Act “totality of the circumstances” and “all relevant factors” Matter of Chen, 20 I&N Dec. 16 (BIA 1989) Koulibaly v. Mukasey, 541 F.3d 613 (6th Cir. 2008)

Adverse Credibility v. Frivolous Finding In Re S-A-, 22 I&N Dec (BIA 2000) Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007) Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007) (1) notice of consequences of filing a frivolous application, (2) specific finding that the alien knowingly filed a frivolous application, (3) sufficient evidence that a material element was deliberately fabricated, and (4) an indication that the alien has been afforded sufficient opportunity to account for any discrepancies or implausible aspects of the claim.

Eligibility for Asylum? Credibility Past Persecution Presumption of future persecution – 8 C.F.R. §208.13(b)(1) Well founded fear of future persecution Nexus (on account of) Protected ground Mixed-motive cases

Protected Ground Race Religion National origin Political opinion Membership in a Particular Social Group

Imputed protected ground? Haider v. Holder, 595 F.3d 276 (6th Cir. 2010) Amanfi v. Holder, 328 F.3d 719 (3d. Cir. 2003) INS v. Elias-Zacarias, 502 U.S. 478 (1992)

Bars to Asylum, I Particularly Serious Crime Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982) Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007) Matter of R-A-M-, 25 I&N Dec. 657 (BIA 2012) Persecutor bar Matter of Rodriguez-Majano, 19 I&N Dec. 811 (BIA 1988) Negusie v. Holder, 129 S.Ct (2009) Diaz-Zanatta v. Holder, 558 F.3d 450 (6th Cir. 2009)

Bars to Asylum, II Terrorist bar Immigration and Nationality Act 212(a)(3) Danshevar v. Ashcroft, 355 F.3d 615 (6 th Cir. 2004) Matter of S-K-, 24 I & N Dec. 475 (BIA 2008) Holder v. Humanitarian Law Project, 561 US 1 (2010)

Bars to Asylum, III Firm resettlement Offer-based test Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011) Serious nonpolitical crime Berhane v. Holder, 606 F.3d 819 (6 th Cir. 2010) Previously denied application INA 208(a)(2)(C) Frivolous application INA 208 (d)(4)(A), (d)(6)

Bars to Asylum, IV Aggravated felony Specific list of crimes found at INA § 101(a)(43) which are considered aggravated felonies (regardless of sentence imposed or actually served)

Where do I file? Affirmative Filings (seven national asylum offices / circuit rides / border cases) Defensive Filings (in removal proceedings)

What do I attach? Complete Form I-589 with Form G-28 Narrative story (which may take more space than application provides; okay to add extra sheet) Supporting Documents (police report(s), medical record(s), country reports or evidence of country conditions) Expert testimony For specifics on fingerprints and photographs, check the instructions

Pre Interview or Hearing Read everything! Make a timeline Remember your obligations under REAL ID! Prepare your witness to tell the truth, tell the story, focus on criminal or police involvement It’s not about why your client loves it here, but it’s why your client can’t go home

Role of Attorney At Asylum Interview? In removal proceedings?

Don’t be Saul! Read the instructions and the complete application Tell the truth, always! Find a mentor Join a bar association or immigration related focus group such as AILA or National Immigration Project

Some parting words… #EndFamilyDetention Immigrationpeyton.blogspot.com