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REFUGEE AND ASYLUM
Refugee & Asylum
"Refugee" is defined as
a person who is unable or unwilling to return to his/her
native country because of a "well founded
fear of persecution on account of race, religion,
nationality, membership in a particular social group,
or political opinion”.
The United States holds a firm belief in human rights
and in ending or preventing the persecution of individuals.
Therefore, asylum is a protection granted by federal
law to qualified applicants who are unable or unwilling
to return to their home country because of persecution
or a fear of persecution.
Asylum and Refugee status differ only in that the
application for asylum status is made from within
the United States and refugee status is applied for
from outside the U.S. However, all applicants must
meet the definition of a refugee.
An alien, who has been granted asylum, will be allowed
to live and work in the United States. He/she may
apply for permanent resident status one year after
being granted asylum. A spouse and any unmarried children
under the age of 21 may be included in asylum application
if they are in the United States.
If you do not qualify for asylum, but fear being
tortured upon returning to your homeland, you can
apply for consideration under the Torture Convention.
‘Affirmative’ Asylum Applications
An applicant who is in the United States and is not
in immigration proceedings may voluntarily apply to
the INS (Form I-590) for asylum. These applications
are known as ‘affirmative’ asylum applications
and come up before the Asylum Officer Corps (AOC).
Such applicants are not placed in detention while
the application is being considered.
‘Defensive’ Asylum Applications
This refers to aliens who are placed in removal proceedings
and then seek asylum. Although Form I-589 is used
for both asylum and withholding of removal, removal
proceedings come up before an immigration judge. The
Executive Office for Immigration Review (EOIR) has
exclusive jurisdiction over cases of aliens who are
placed in removal proceedings and then apply for asylum.
These are known as ‘defensive’ applications.
Aliens who seek asylum as a defense against removal
may be detained for being in the U.S. illegally until
an immigration judge rules on their asylum claim.
This detention, however, is not due to the asylum
claim, but to their illegal status.
Aliens who arrive at a U.S. port of entry without
travel documents or who engage in misrepresentation
are detained and placed in expedited removal. Those
who express a fear of persecution from the home country
receive a ’credible fear’ interview with
an INS asylum officer. If the officer feels the case
to be genuine, the alien may apply for asylum but
will be detained, as he/she must remain in removal
proceedings until an immigration judge decides their
case.
Parole
INS district directors have the authority to release
an alien, who is in removal proceedings, from detention.
This may be done if the director feels that the release
would serve some humanitarian need or public benefit
and the alien can provide evidence of a credible asylum
claim. However, criminal aliens are governed by more
restrictive criteria.
Overseas Refugees
The United States has a refugee program by which
a refugee applicant may be interviewed in a third
country after he/she has fled his/her own country
for fear of persecution. Such a person should contact
the nearest office of the United Nations High Commissioner
for Refugees, who will decide whether the individual
requires protection or not. The U.S. President designates
certain countries and the number of refugees that
will be accepted in the coming fiscal year.
This application may be filed on a Form I-590 but
the alien must be eligible for a refugee interview
and this depends on their nationality and whether
they come under the processing priorities used for
the refugee program.
INS InfoLinks on Refugee and Asylum:
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