Written by attorney Daniel P. Hilf

Asylum - Proving Your Case

Asylum applies to refugees – person who left their home country because of persecution, or a fear of persecution based upon 5 protected grounds: economic harm, emotional or psychological harm, environmental harm, physical harm, and social harm. The person seeking asylum must prove by a preponderance of the evidence that the harm rises to the level of persecution. Just because the home country does not have the same freedoms that we have in the United States is not sufficient (if this were the case most of the world would become eligible for asylum in the United States). Mere harassment is not enough. Ongoing pervasive harassment may be enough. The specific facts must show severe conduct against or towards the individual seeking asylum that has resulted in severe mental pain or suffering in order for the applicant to be awarded asylum. The asylum applicant must establish by a preponderance of the evidence a nexus (a related connection) between the persecution feared, and the 5 protected grounds. Asylum applicants must prove by a preponderance of the evidence that he or she has suffered past persecution, or there is at least a 10 percent likelihood that he or she will face persecution in the future in their home country if returned on account of one of the 5 protected grounds. For example, a Christian that fled a conservative Muslim country that outlawed Christianity and had a well founded fear of persecution due to actions taken against him and his family because of their Christian religious beliefs can try to argue past persecution as a grounds for asylum. A Muslim that came to the United States from the same country and converted to Christianity while here and fears to return based upon his or her beliefs may seek asylum on the basis of a well founded fear of future persecution. The 5 protected grounds are more fully described below: Economic Harm – The asylum applicant must establish a high enough depravity of having property confiscated and/or not being able to earn money to support the applicant because of being deprived of work, being unable to sustain a business due to licensing or other issues, and receiving substantial fines. Again the degree of the harm is the paramount consideration of the Immigration Court. A small, unjust fine to a wealthy individual is probably not enough to gain asylum. The same unjust fine to an impoverished individual that prevents him or her for providing for themselves and their family may be enough for asylum depending upon the circumstances. Emotional or Psychological Harm – Destruction of a home or business, the threat of harm against the asylum applicant, actual harm or threat of harm to family members of the asylum applicant based upon the applicants conduct can cause severe emotional or psychological harm. Does the asylum applicant have a psychological condition such as Post Traumatic Stress Disorder, anxiety, depression, nightmares, ulcers, etc. that are related to the persecution? Can this be demonstrated through the testimony of a psychologist or otherwise demonstrated? The demeanor of the asylum applicant while testifying about this is an important consideration of the Immigration Judge or asylum officer. If the asylum applicant is unemotional and detached about the prior harm, there may be a psychological reason for it that should be presented to the Immigration Judge or asylum officer to make the testimony seem more credible. Environmental Harm – was the applicant forced to live in filth, isolation, cramped conditions, deprived of basic necessities, and/or subjected to watch others tortured. Are there photographs of the living conditions? Are there records, articles, or other evidence to prove that the place was a detention camp, prison, or jail where torture occurred?. Was the incarceration based upon religious beliefs or some other inhumane purpose? Physical Harm – examples of this are physical abuse, torture, forced labor, and starvation. Are there scars, burn marks, broken bones or other injuries that substantiate the abuse? Scars, marks, or other observable to the eye injuries may not exist based upon the method of torture induced by a persecutor. Are there medical records available from either the home country or the United States that document the physical harm that the applicant endured?. Are there photographs of the injury? Social Harm – this could include things such as not having privacy, being forced to live in a substandard abode, denial of an education or employment, constant surveillance, being forced to inform on others, and/or a prohibition on being able to socialize with others. Are there other witnesses to the harm that can testify or produce affidavits? Many of these categories may apply, and it is often the cumulative effect of all of these harms that formulates the persecution. If the asylum applicant has a well founded fear of future persecution due to political beliefs, activities, or otherwise, and if the applicant would likely face persecution if returned to their home country, could qualify for asylum in the United States. If harm happened to friends and family based upon their religion, sexual orientation, race, social group or political beliefs the applicant may be able to establish that it would have been only a matter of time until they suffered the same harm to qualify for asylum. An asylum applicant may gain asylum by showing past persecution on account of a protected ground as outlined above, or if the applicant has a well founded fear of future persecution. If the asylum applicant can establish past persecution, there is a presumption of a well founded fear of future persecution unless the government can show by a preponderance of the evidence that a fundamental change of circumstances ocurred. The change can be in the country conditions or the circumstances of the individual where the applicant no longer has a well founded fear of persecution. For example, a democracy activist when Poland was communist would have had a potential basis for asylum. However, with the democratic changes that occurred in Poland, the same democracy activist is unlikely to have that same basis for asylum. In some cases, even if future persecution is unlikely,asylum can be granted on a discretionary basis if the past persecution was unconscionable and that the applicant should not be repatriated. The government sometimes successfully argue that asylum should not be granted because the individual can move to another part of his or her home country to avoid the persecution. When the persecution is not caused by the government of the home country, the asylum seeker has the burden of showing it is not possible to relocated elsewhere. The proof can be in the form of credible and persuasive testimony, physical or documentary evidence, and expert testimony. The Immigration Judge or asylum officer will consider if the totality of the evidence is credible, if it is corroborated by other evidence, if it is consistent with the petition, and if it rises to the level of persecution. Testimony alone may be enough if the Immigration Judge or asylum officer finds the testimony compelling. In many instances other evidence of the harm may be difficult to produce because it is hidden or not preserved due to the actions taken by the persecutor. It is best to produce any credible, corroberative evidence that is available. The Court also will look to see if the persecution is consistent with the country conditions. In discretionary matters, when the Immigration Judge or asylum hearing officer looks at the totality of the circumstances, humanitarian factors (such as age, family ties, health, etc.) along with negative factors. It is important for the Immigration lawyer to adequately prepare the case in order to get a good result. Even if the severe harm happened through persecution, if it cannot be proven to the Immigration Court the applicant will lose. Relevant evidence needs to be presented to the Immigration Court and the government on a timely basis. The witnesses need to be prepared to answer the questions in a credible manner that address the issues outlined in this blog. The applicant needs to be familiar with the information contained in their petition for asylum, and the information submitted in the petition must be accurate and consistent. The Immigration attorney must present the case in an effective, sympathetic manner. The case presented should be graphic, detailed, and compelling in order to prevail. Remember, the asylum applicant has the burden of proving eligibility for asylum. An experienced Immigration Attorney is necessary to make sure the asylum application is accurate and complete, to help the asylum applicant gather and present important corroberating evidence, to prepare witnesses and the asylum applicants' testimony, to educate the asylum applicant on Immigration law and the required proofs for asylum, and to make compelling arguments to the Immigration Judge or asylum office r. For asylum cases, there is too much risk in proceeding without the representation of an experienced immigration lawyer. Hiring the right Immigration lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.

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