The United States has a long-standing commitment to the protection of victims or potential victims of serious human rights violations who have fled their country. Refugee or asylum status, along with occasional lotteries (see chapters 1 and 5), constitute the only significant avenues for immigrating to the United States for individuals without family ties or employment opportunities in the U.S. The United States will only consider individuals for refugee or asylum status if they have a well-founded fear of persecution in their home countries. To be eligible for either refugee or asylum status, the applicant must qualify as a refugee, pursuant to the definition in INA § 101(a)(42). Although the refugee and asylee must satisfy the same basic requirements, the refugee applicant applies from abroad, whereas the asylum applicant applies while present in the United States or at its border. Refugee and asylum status differ in several other aspects, as discussed below.

The President has authority under INA § 207 to admit as refugees non-citizens who are outside the United States and who qualify for refugee status. The President may, after consultation with Congress and before the beginning of the fiscal year, set a worldwide refugee admission ceiling for the year at such number as the President determines is "justified by humanitarian concerns or is otherwise in the national interest." INA § 207(a)(2). The President must also allocate this number among refugees from regions of the world which are of special humanitarian concern to the United States. In the event of an "unforeseen emergency refugee situation," the President may, after appropriate consultation with the relevant congressional committees, expand the admissible number of refugees if such action is justified by "grave humanitarian concerns or is otherwise in the national interest." INA § 207(b).

For example, President George W. Bush set the refugee admission ceiling for fiscal year 2001 at 80,000, which was a decrease from 90,000 refugee admissions authorized in 2000. The President allocated the total number regionally as follows: Africa, 20,000; East Asia, 6,000; Former Yugoslavia, 20,000; Former Soviet Union, 17,000; Latin America/Caribbean, 3,000; Near East/South Asia, 10,000; and unallocated reserve, 4,000. The regional allocations do not reflect the distribution of refugees throughout the world, but instead, show U.S. foreign policy interests. Also, unused allocations may be transferred to regions where needed.

Like an asylum applicant, an applicant for refugee status must meet the definition of a refugee contained in INA § 101(a)(42), which includes the possession of a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." While numerical limitations apply to refugee applicants, such limitations do not exist for asylum applicants. In addition, beneficiaries of the Lautenberg amendment codified in P.L. 101-167 (Nov. 21, 1989) -- Soviet Jews, Soviet Evangelical Christians, Ukrainian Catholics, Ukrainian Orthodox, and most Indochinese (Vietnamese, Lao, and Khmer) -- need only assert a fear of persecution and show a credible basis for concern about the possibility of such persecution.

In addition to meeting the statutory definition of refugee, a non-citizen must be a generally admissible immigrant under INA § 212(a) (see chapter 5), must be of special humanitarian concern to the United States, and must not have firmly resettled in any other country. INA § 207(c). Several of the inadmissibility provisions of INA § 212(a) do not apply to refugees, including those provisions relating to labor certification, self-sufficiency, valid entry documents and visas, literacy, and limitations on foreign medical graduates. The Attorney General may, for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive other inadmissibility provisions. INA § 207(c)(3).

Each refugee, however, must be sponsored by a "responsible person or organization." See 8 C.F.R. § 207.2(d). Relatives, churches, community organizations, and other voluntary agencies often fill this role. The sponsor must also guarantee transportation for the applicant to "the place of resettlement in the United States."

To apply for refugee status, non-citizens must complete Form I-590 (Registration for Classification as a Refugee). Applicants 14 years of age or older also must submit Form G-325C (Biographical Information) and Form FD-258 (Applicant Card). 8 C.F.R. § 207.2. Applicants must file these completed forms, along with supplementary statements and documentary evidence, at a BCIS office outside the United States. An immigration officer will then interview the applicant to determine eligibility, and the applicant must "submit to a medical examination." 8 C.F.R. § 207.2(b) and (c).

Waiting lists are maintained for each designated refugee group of special humanitarian concern. The filing date of an applicant's approvable application determines his or her position on the waiting list. The Secretary for Homeland Security may, however, adopt appropriate criteria for selecting refugees and assigning priorities for each designated group based on considerations of family reunification, close association with the United States, compelling humanitarian concerns, and public interest factors. 8 C.F.R. § 207.5.

If "an officer in charge outside of the United States" approves the application, the refugee must enter the United States within four months. 8 C.F.R. § 207.4. Spouses and children (unmarried and under the age of 21) accompanying or following to join a refugee may be admitted if not otherwise entitled to admission, and if they have not participated in the persecution of others. Spouses and children are charged against the numerical limitation under which the refugee's entry was charged. INA § 207(c)(2). An applicant may not appeal the denial of his or her application. 8 C.F.R. § 207.4.

After one year in the United States, the refugee is eligible to apply for adjustment of status to lawful permanent residence. INA § 209(a)(1)(B). Whereas asylum status may be terminated if conditions improve in the asylee's home country, making asylum unnecessary, refugee status is not conditional in this respect. INA §§ 207(c)(4), 208(c)(2). Persons seeking adjustment must return to the BCIS for an inspection and examination in order to determine admissibility. INA § 209(a)(1). Although INA § 209(a) provides for the adjustment of status of non-citizens admitted to the United States under § 207, a refugee may be removed from the United States through removal proceedings for inadmissible non-citizens rather than removal proceedings for non-citizens already present in the U.S. if it is subsequently determined that the non-citizen was not in fact a refugee within the meaning of § 101(a)(42) at the time he or she was admitted. INA §§ 207(c)(4), 209(a). If the non-citizen is found to be admissible, permanent resident status will be granted and made effective as of the date the non-citizen arrived in the United States. INA § 209(a)(2). While there is an annual numerical limitation of 10,000 on adjustment of status for asylees, there is no numerical limitation on adjustment of status for refugees. INA § 209(b). See O.I. 209.3K.

Non-citizens who are present in the United States or arrive at its border may apply for asylum if they qualify as refugees. INA § 208. A refugee is defined in INA § 101(a)(42)(A) as "any person who is outside any country of such person's nationality or . . . 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." In 1996, IIRIRA augmented the definition of refugee to count "forced abortion or involuntary sterilization, or persecution for failure or refusal to undergo such procedure or for other resistance to a coercive population control program" as persecution on account of political opinion. INA § 101(a)(42). Asylum can provide relief from removal and a grant of asylum may lead to permanent residence. Moreover, there is no waiting period before one qualifies for asylum.

A non-citizen may apply for asylum in at least five different contexts: (a) upon arrival at the frontier or the airport; (b) after arrival, ordinarily within one year; (c) during the removal process as a defense to removal; (d) during the removal process as a basis for withholding of removal; and (e) as a basis for relief under the Convention Against Torture.

(a) When a non-citizen is inspected for admission to the United States and asserts grounds for asylum or is found to be inadmissible, for example, because his/her passport or visa is found to be fraudulent, the inspecting immigration officer refers the non-citizen to an asylum officer for a summary determination as to whether the non-citizen has a "credible fear" of persecution. Credible fear is defined as a "significant possibility" that the non-citizen "could establish eligibility for asylum under INA § 208," considering the "credibility of the statements made by the [non-citizen] in support of the [non-citizen's] claim" and "other facts as are known to the officer." INA § 235(b). If the asylum officer does not find credible fear, the officer must order the non-citizen to be removed from the United States. The non-citizen has an opportunity to request prompt review by an immigration judge which must be concluded within 24 hours if practicable, and in no case later than 7 days after the determination by the asylum officer. The non-citizen must be detained during these proceedings. There is no other administrative review unless the non-citizen testifies that he or she already has been admitted as a permanent resident, a refugee, or an asylee. INA § 235(b)(1)(C). If the asylum officer finds credible fear at the initial interview, the non-citizen is ordinarily detained for a more complete asylum interview as discussed below. If asylum is denied, the non-citizen will either be permitted to withdraw his or her application for admission or will be placed in removal proceedings. 8 C.F.R. § 235.4.

(b) If a non-citizen has been admitted to the United States - ordinarily in connection with some nonimmigrant visa - he or she may file an asylum application (Form I-589, see application process discussed below at § 10-2.3) within one year after arrival in the U.S. and may receive work authorization 180 days after filing an asylum application. Non-citizens may be permitted to file an application for asylum more than one year after admission if their well-founded fear of persecution arose from a change in country conditions occurring after the one year period.

(c) If an undocumented non-citizen or a non-citizen whose nonimmigrant visa has expired, residing in the United States and not under removal proceedings, applies for asylum, immigration authorities will become aware that the non-citizen is out of immigration status and will initiate removal proceedings to force the alien to depart the U.S. In light of the small percentage of applicants actually granted asylum (on average for fiscal years 1998 to 2000 about 20-30 %), many non-citizens wait to be subjected to removal proceedings and then assert an asylum claim as a defense to removal or as the basis of withholding of removal, rather than risk exposure to removal by making an affirmative application for asylum.

(d) If the BBS has initiated removal proceedings against a non-citizen, the non-citizen may apply for asylum as a defense to removal if the application is submitted within one year of his or her latest entry to the United States.

(e) In addition to applying for asylum, a non-citizen may also apply for withholding of removal or ask for relief based on the United Nations Convention Against Torture. During the removal process, a non-citizen may apply for withholding of removal as a defense on the basis of facts similar to the application for asylum. See discussion on withholding of removal in § 10-2.1. As a defense to removal analogous to withholding of removal, the non-citizen may also apply for relief based on the Convention Against Torture, if he or she has a substantial ground for believing that he or she would be in danger of being subjected to torture if repatriated. See discussion on United Nations Convention Against Torture in § 10-2.2.

§ 10-2.1 Asylum and "Withholding of Removal" (formerly "Withholding of Deportation")

The provisions of INA § 241(b)(3)(A) governing "withholding of removal" are closely connected to those of INA § 208(a) governing asylum. This relief was previously known as "withholding of deportation" and immigration lawyers continue to use the phrase "withholding of removal" for this relief. The Nutshell uses these phrases interchangeably. See § 8-4.1.d(2)(e), supra.

Section 241(b)(3) provides that , with certain exceptions, a non-citizen may not be removed to a country where his or her "life or freedom would be threatened . . . on account of race, religion, nationality, membership in a particular social group, or political opinion." A non-citizen most often will apply for asylum as relief in removal proceedings along with a request for withholding of removal under § 241(b)(3) (formerly "withholding of deportation" under old INA § 243(h)). Moreover, an application for asylum is also considered as an application for withholding of removal. 8 C.F.R. § 208.3(b).

While similar in many aspects, asylum as a defense to removal and withholding of removal have significant differences. Withholding of removal does not grant the successful applicant an opportunity to apply for permanent resident status. The applicable standard of proof is also higher for withholding of removal applicants as discussed below in § 10-2.3. In addition, asylum is a discretionary matter, whereas § 241(b)(3) relief (old 243(h) relief) is mandatory if the applicant is qualified. A non-citizen therefore, having established a clear probability of persecution, must be granted withholding of removal to the country of persecution, but may be denied asylum at the discretion of an immigration judge. The non-citizen in Matter of Salim (BIA 1982), for example, established the requisite probability of persecution in Afghanistan, but was denied asylum as a matter of discretion because of his arrival in the United States with a fraudulently obtained passport. The court ordered the non-citizen's removal to Pakistan.

An asylum officer or district director may, following a further interview, terminate withholding of removal due to changed country conditions, fraud, or commission of an act which is grounds for denial under § 241(b)(3)(B). 8 C.F.R. § 208.23. Even though country conditions may change, it is extremely rare for immigration authorities to devote limited resources to the initiation of proceedings to terminate withholding of removal.

§ 10-2.2 United Nations Convention Against Torture

In 1994, the United States ratified the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. Article 3 of the Convention provides that a country may not "expel, return (refouler) or extradite" a person to another country if there are "substantial grounds for believing that he would be in danger of being subjected to torture." In 1998, Congress passed the Foreign Affairs Reform and Restructuring Act (FARRA) to ensure compliance with the Convention.

Pursuant to FARRA, the INS adopted implementing regulations on February 16, 1999. 64 Fed. Reg. 8478 (1999). Claims under these regulations provide an alternative avenue of relief to non-citizens seeking asylum or seeking to avoid extradition. The regulations apply only to withholding of removal, and thus do not give the successful applicant the beneficial immigration status which asylum provides. Both affirmative claims to asylum officers and defensive claims to immigration judges are permitted. The non-citizen need not show that she faces torture on account of race, religion, nationality, membership of a particular social group or political opinion, only that she is more likely than not to be tortured by government officials or by private actors with government acquiescence.

In Re Matter of S--V-- (BIA 2000) considered these regulations. The Board defined the Torture Convention's requirements as providing narrower relief than offered by the BIA in Kasinga, where a fear of persecution by non-state actors that the government was unable to control was sufficient to create a risk of persecution. The individual must also face a specific risk of being tortured, beyond that faced by the general population. That the individual is likely to be subject to indiscriminate human rights violations or generalized violence is insufficient to require relief under the regulations.

§ 10-2.3 Burden and Standard of Proof in Asylum Cases

a. Well-Founded Fear of Persecution

The burden of establishing eligibility as an asylee is on the applicant. 8 C.F.R. § 208.13. Applicants must show that they have a well-founded fear of persecution in their home country on account of race, religion, nationality, membership in a particular social group, or political opinion. Applicants may sustain their burden of proof either by showing that they suffered past persecution or by demonstrating a "well-founded fear of future persecution" upon return to their country or origin. 8 C.F.R. § 208.13(b).

Applicants can show past persecution by establishing that they have suffered persecution in the past on account of race, religion, nationality, membership in a particular social group, or political opinion and are "unable or unwilling to return to, or avail [themselves] of the protection of that country owing to such persecution." 8 C.F.R. § 208.13(b)(1). Similarly, applicants may establish "well-founded fear" by establishing that they have a fear of persecution on account of the aforementioned five grounds, there is a "reasonable possibility" that they would suffer such persecution, and they are unable or unwilling to return to or receive protection from that country. 8 C.F.R. § 208.13(b)(2).

An applicant's petition for asylum must satisfy both a subjective and an objective component. Subjectively, the applicant must show that his or her fear is genuine. The objective component requires a showing by credible and specific evidence in the record of facts that would support a reasonable fear of persecution. Arriaga-Barrientos v. INS (9th Cir.1991). If, however, the applicant can establish that there is a "pattern or practice" of persecution in his or her country on account of race, religion, nationality, membership in a particular social group, or political opinion, and that his or her fear of persecution upon return reasonable because the applicant is identified with one of these groups, the applicant need not provide evidence that he or she will be individually singled out for persecution 8 C.F.R. § 208.13(b)(2)(iii).

If the applicant had suffered past persecution, it is presumed that his or her life or freedom would be threatened upon return. This presumption can be rebutted if the BCIS establishes by a preponderance of evidence that conditions in the country have changed to an extent that it is no longer more likely than not that the applicant would face persecution. The BCIS may sustain its burden of establishing changed circumstances by proving any change in circumstances "so long as those changes are fundamental in nature" and go to the "basis of the fear of persecution." 8 C.F.R. § 208.13(b)(1)(i)(A). In addition to establishing changed circumstances, the BCIS may rebut the presumption by establishing that the applicant can avoid future persecution by relocating to another part of the applicant's country of nationality, and that it would be reasonable to expect the applicant to do so. 8 C.F.R. § 208.13(b)(1)(i)(B).

If the BCIS successfully rebuts the presumption of a well-founded fear of future persecution, a non-citizen may still be granted asylum by demonstrating compelling reasons for being unwilling to return to his or her country of nationality or last habitual residence due to the severity of the past persecution. Also, the applicant may be granted asylum if he or she establishes that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country. 8 C.F.R. § 208.13(b)(1)(iii)(A)-(B).

The requirement of a "well-founded fear," has not been clearly defined. The applicable standards are clearly different in the context of asylum applications and withholding of removal applications. As the Supreme Court cases discussed below demonstrate, withholding of removal applications require a higher standard of proof.

In INS v. Stevic (Sup.Ct.1984) and INS v. Cardoza-Fonseca (Sup.Ct.1987) the Supreme Court established the standard of proof which the BCIS must apply in considering asylum applications and examined the procedures available for review if such applications are denied. Stevic was a Yugoslav citizen who was ordered removed from the United States. While his motion to reopen his removal was pending before an immigration judge, he applied for asylum. The immigration judge denied the reopening and his appeal to the Board of Immigration Appeals was dismissed. The Board noted that "[a] motion to reopen based on a . . . claim of persecution must contain prima facie evidence there is a clear probability of persecution to be directed at the individual." The Board concluded that Stevic had failed to prove that he would be singled out for persecution if he returned to Yugoslavia.

Stevic sought review by the U.S. Court of Appeals of the Board's denial of his motion to reopen the removal proceedings on the asylum matter; this appeal was consolidated with his appeal from the denial of his habeas corpus petition in the federal district court concerning an earlier motion to seek withholding of deportation on the basis of INA § 243(h)(now "withholding of removal" under INA § 241(b)(3)).

The Court of Appeals for the Second Circuit held that when the United States acceded to the United Nations Protocol relating to the Status of Refugees in 1968, and later adopted the Refugee Act of 1980, it intended to establish a more generous standard in evaluating asylum claims than the "'clear probability' that an individual will be singled out for persecution" approach used by the Board of Immigration Appeals. The Court of Appeals indicated that the same burden of proof should apply to both the withholding procedure and to affirmative applications for asylum.

The Supreme Court granted certiorari and concluded from an analysis of legislative history and statutory language that the applicant must show a clear probability of persecution in order to obtain withholding of deportation under INA § 243(h) (now "withholding of removal" under INA § 241(b)(3)). The Court defined the clear probability of persecution standard as inquiring whether it is more likely than not that the applicant would be subject to persecution. The Supreme Court suggested that a different standard might be applicable to an affirmative asylum application.

In INS v. Cardoza-Fonseca (Sup.Ct.1987) the Supreme Court directly addressed the standard of proof applicable to applications for asylum under § 208(a). Cardoza-Fonseca was a Nicaraguan citizen who overstayed her nonimmigrant visa. When the INS commenced removal proceedings, Cardoza-Fonseca requested withholding of removal pursuant to INA § 243(h) and asylum pursuant to § 208(a). To support her asylum claim, she attempted to show a "well-founded fear of persecution" upon her return to Nicaragua with evidence that her brother had been tortured and imprisoned because of his political activities in Nicaragua. Cardoza-Fonseca claimed that she, too, would be tortured if forced to return, because the Sandinista government knew she had fled Nicaragua with her brother and would want to interrogate her about her brother's whereabouts. Because of the status of her brother, the Nicaraguan government would become aware of her own political opposition to the Sandinistas.

At the removal hearing, the immigration judge applied the "more likely than not" standard of proof to Cardoza-Fonseca's asylum claim. The judge held that she was not entitled to asylum because she had failed to establish "a clear probability of persecution." The Board of Immigration Appeals (BIA) affirmed the decision. The Court of Appeals for the Ninth Circuit reversed, holding that the § 208(a) "well-founded fear" standard is more generous than the § 243(h) (now § 241(b)(3)) clear probability standard in that § 208(a) requires only a showing of past persecution or "good reason" to fear future persecution. The Court of Appeals remanded the case to the BIA, to be evaluated under this standard.

The Supreme Court affirmed the judgment of the Court of Appeals, holding that the § 243(h) (now § 241(b)(3)) clear probability standard does not govern asylum applications under § 208(a), and that "the reference to 'fear' in the § 208(a) standard obviously makes the eligibility determination turn to some extent on the subjective mental state of the alien." The Court, however, declined to give concrete meaning to the term "well-founded fear," leaving this task to the process of case-by-case adjudication.

If the asylum applicant has satisfied the § 243(h) (now § 241(b)(3)) clear probability standard as to withholding of removal, the applicant has a fortiori satisfied the more generous "well-founded fear" standard governing asylum claims. Hernandez-Ortiz v. INS (9th Cir.1985). In Hernandez-Ortiz, the non-citizen's evidence of threats or acts of violence against members of her family in El Salvador showed a clear probability that her life would be threatened by return to El Salvador, and that the threat of persecution was related to her political opinion. Having established a clear probability of persecution, the non-citizen had a fortiori established a well-founded fear of persecution, thereby entitling her to asylum status.

b. Basis for Asylum

As mentioned above, in order to establish a claim for asylum, the applicant must show that he or she has a well-founded fear of persecution in the home country on account of one of the five grounds: (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion.

In a 1992 case, the Supreme Court held that a guerrilla organization's coercion to join its organization does not necessarily constitute persecution on account of political opinion for the purposes of INA §§ 101(a)(42) & 208. INS v. Elias-Zacarias (Sup.Ct.1992). In that case, Jairo Jonathan Elias-Zacarias testified during removal proceedings that he would be subject to persecution if he returned to his native Guatemala. He described how guerrillas had forced their way into his home and requested that Elias-Zacarias and his parents join their organization. They refused, and the guerrillas promised to return. Elias-Zacarias testified that he believed joining the organization would subject him to retaliation by the government.

In his opinion for six members of the Court, Justice Scalia reviewed the applicable standards for granting asylum under § 208(a). First, he noted, the fear of persecution had to be such that a reasonable factfinder would conclude that it existed. He reasoned that, in this case, the political opinion in question was not that of the applicant, but rather, that of the guerrilla organization (the persecutor). In response, Elias-Zacarias had argued that failure to join the guerrillas was itself tantamount to expressing a political opinion, but the Court was not persuaded, holding instead that Elias-Zacarias had failed to show evidence which compelled reversal of the BIA decision.

In a dissenting opinion for three members of the Court, Justice Stevens stated that "[a] political opinion can be expressed negatively as well as affirmatively," and that in these circumstances, expression led to a reasonable fear of persecution. For a period after the decision in Elias-Zacarias it was unclear whether the "forcible recruitment" and imputed political opinion theory could still prevail with the proper evidence. Indeed, it now appears that the doctrine of imputed political opinion is still viable. Shirazi-Parsa v. INS (9th Cir. 1994). The Board granted asylum to a Sri Lankan national who was kidnapped by the Tamil Tigers and forced him to work in their camp. In re S-P- (BIA 1996). When the Tiger's camp was raided by the Sri Lankan Army, the soldiers accused the applicant of being a Tamil Tiger, imprisoned him, and ill-treated him during interrogations. The Board reasoned that in the context of general civil unrest, "it is not easy to evaluate whether the applicant's harm was inflicted because of imputed political views rather than a desire to obtain intelligence information." The difficulty of determining motive in such situations should not, however, "diminish the protections of asylum for persons who have been punished because of their actual or imputed political views, as opposed to their criminal or violent conduct."

In Cordon-Garcia v. INS (9^th Cir. 2000), the Ninth Circuit ruled that imputed political opinion could be found where "one party to a conflict insists to the victim that the victim is aligned with the other side." Petitioner was a Guatemalan national who taught literacy classes at a government-funded agency. Guerillas kidnaped her and tried to dissuade her from working for the government because literacy made it more difficult to "reach" the people. Petitioner then received protection from the government until she left the country. The guerillas, however, - in an attempt to locate her - killed her father and uncle. The Ninth Circuit reversed the BIA's denial of petitioner's asylum claim and stated that a "presumed affiliation" was the equivalent of an opposing political opinion, "whether or not she actually holds such an opnion." The court remanded petitioner's case for credibility determinations, advising the BIA to grant her asylum claim if her testimony is found to be credible. Similarly, In re H- (BIA 1996) granted asylum to a Somali national because of the persecution that he had suffered as a member of the Marehan subclan (to which the ousted Somali President also belonged). The Board held that the applicant was a member of a "particular social group." "The fact that almost all Somalis can claim clan membership and that interclan conflict is prevalent should not create undue concern that virtually all Somalis would qualify for refugee status, as an applicant must establish he is being persecuted on account of that membership."

In re Kasinga (BIA 1996) held that the practice of female genital mutilation ("FGM") can form the basis for a grant of asylum. Kasinga, a 19-year old native of Togo, feared that she would be subjected to FGM and forced marriage upon her return to her country. The BIA stated the "applicant's testimony in Kasinga established that she had a well-founded fear of persecution on account of her membership in a 'particular social group,' i.e., young women of the Tchamba-Kunsuntu Tribe who have not suffered FGM and who oppose the practice." In Abankwah v. INS (2nd Cir. 1999), the Second Circuit reaffirmed Kasinga by stating that "FGM involves the infliction of grave harm" and constitutes persecution under INA § 208.

§ 10-2.3 Basic Asylum Application Procedures

Asylum is not a right: rather it is granted at the discretion of the asylum officer or immigration judge in the district where the non-citizen resides or enters the U.S. 8 C.F.R. § 208.14. The Refugee Act of 1980 established the basic standard for granting asylum in INA § 208. IIRIRA, codified in 1996, provided additional restrictive rules regarding timing, eligibility for judicial review, and procedures for filing an asylum claim.

a. Jurisdiction and Judicial Review

Asylum officers in the BCIS have initial jurisdiction over an asylum application filed by non-citizen physically present in the U.S. or seeking admission at a port of entry. 8 C.F.R. § 208.2. Asylum officers receive special training in international human rights law, non-adversarial interview techniques, and other relevant national and international refugee laws. The Director of International Affairs in cooperation with the Department of State compiles and disseminates to asylum officers information concerning the persecution of persons in other countries, as well as other information relevant to asylum determinations. 8 C.F.R. § 208.1(b).

Asylum officers have jurisdiction over all asylum applications except those filed by non-citizens in removal proceedings, which are evaluated by immigration judges. If the asylum officer does not grant political asylum, and, instead, refers the application to an immigration judge, the judge will review the application de novo. The decision of the immigration judge is subject to both a BIA appeal and judicial review under the usual rules.

The standard for reviewing asylum or withholding of removal is the "substantial evidence" standard which is slightly stricter than the clear error standard. With the clear error standard, the standard of review used by appellate courts in reviewing trial court decisions, the appellate court must uphold the trial court's factual findings unless it is "clearly erroneous." In applying the substantial evidence standard, the appellate court must uphold the BIA's determination "if supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias (S.Ct. 1992). This standard requires the petitioner to establish that "no reasonable factfinder could find that petitioner has not established eligibility for asylum."

b. The Application Process

Non-citizens must submit an application for asylum (Form I-589), along with biographic information (Form G-325A), an FD-258 fingerprint chart, and a photograph. INA § 208(d)(1), 8 C.F.R. § 208.3. Applicants must also demonstrate that they are filing an application within one year after the date of arrival in U.S. INA § 208(a)(2)(B). A non-citizen may not apply for asylum if a previous asylum application was denied. INA § 208 (a)(2)(C). These conditions may be waived if the non-citizen proves "either the existence of changed circumstances which materially affect his or her eligibility for asylum or extraordinary circumstances relating to the delay in filing the application." INA § 208(a)(2)(D).

Provided the non-citizen is not in removal proceedings, he or she files the application materials with the BCIS Regional Service Center, which then forwards them to an asylum officer. The asylum officer may grant asylum in the exercise of discretion to an applicant who qualifies as a refugee under INA § 101(a)(42). If the applicant appears to be removable under INA § 240, the asylum officer must either grant asylum or refer the application to an immigration judge for adjudication in removal proceedings. 8 C.F.R. § 208.14(b).

The asylum officer is expected to interview each applicant for asylum in a non-adversarial manner (except for expedited removal cases), and not in public, unless the applicant requests otherwise. 8 C.F.R. § 208.9. The applicant may have counsel and may submit affidavits of witnesses. In making a determination, the asylum officer may rely on information provided by the State Department and the Office of International Affairs, as well as other "credible" sources, such as international organizations, private voluntary agencies, news organizations, or academic institutions. 8 C.F.R. § 208.12.

Prior to 1990 regulations, comments from the Bureau of Human Rights and Humanitarian Affairs (BHRHA) of the Department of State were required. Courts, however, were critical of the weight given to BHRHA opinions. The Second Circuit affirmed the admissibility of the State Department's opinions on the degree of persecution that exists in the country of prospective deportation. Zamora v. INS (2d Cir.1976). The advisory opinions are admissible provided the State Department reveals, so far as possible, the basis for its views and does not attempt to apply such knowledge to the particular case. Under the current regulations, comment from the Department of State (usually the Bureau of Democracy, Human Rights and Labor) is optional. 8 C.F.R. § 208.12.

An applicant who leaves the United States without first obtaining advance parole is presumed to have abandoned his application for asylum or withholding of removal (formerly "withholding of deportation"). 8 C.F.R. § 208.8. Moreover, an unexcused failure to appear for a scheduled interview may result in the dismissal of the application or a waiver of the right to an interview. 8 C.F.R. § 208.10.

The decision by an asylum officer to grant or deny asylum, or to refer the asylum application to the immigration judge, must be communicated in writing to the applicant. 8 C.F.R. § 208.19. If the asylum officer denies the affirmative application of asylum from a non-citizen who is out of immigration status, the officer refers the case for removal proceedings before an immigration judge. 8 C.F.R. § 208.14(b). The regulations do not require an asylum officer to state reasons for referrals, which constitute the majority of decisions. There is no right to appeal a decision of an asylum officer, but the application can be renewed de novo in removal proceedings. If the non-citizen still has a valid visa to remain in the U.S., the asylum officer can deny the affirmative application for asylum and there is no immediate review of the denial.

c. Review of Application

Asylum will be denied as a matter of statutory eligibility if the applicant (1) fails to qualify as a refugee; (2) participated in the persecution of any other person on account of race, religion, nationality, membership in a particular group, or political opinion; (3) constitutes a danger to the community of the United States, having been convicted by a final judgment of a particularly serious crime; (4) has committed a serious non-political crime outside the United States prior to arrival in the United States; (5) is regarded as a danger to the security of the United States; (6) is inadmissible or removable on terrorist activity grounds; or (7) has been firmly resettled in another country. INA § 208(b). The 1996 Act provides that "an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime" that disqualifies him or her from asylum. INA §§ 208(b)(2)(A)(ii), 208(b)(2)(B)(i).

In the case of Elian Gonalez - a six year old boy whose mother had died during their journey in a small boat from Cuba to the United States - the INS was compelled to decide whether a child could independently apply for asylum. In Gonzalez v. Reno, the Eleventh Circuit stated that, as a matter of statutory interpretation, the statutory language of "any alien" in INA § 208(a) means that children are clearly eligible to apply for asylum. See Gonzalez v. Reno (11^th Cir. 2000). Initially, the INS received an application for asylum filed in the name of Elian Gonzalez through his great uncle in Florida. The Eleventh Circuit ruled that although children are eligible to apply for asylum, it was reasonable for the INS to determine that the petitioner lacked the capacity to apply since his father in Cuba opposed the asylum application. In affirming the denial of an asylum hearing, the court stated that "the only proper adult to represent a six-year-old child is the child's parent," and that the INS had made a sound policy choice to which the court owed deference.

Any non-citizen who is inadmissible or removable on terrorism grounds is ineligible for asylum. In addition, IIRIRA amendments also provided that an aggravated felony is a particularly serious crime that renders a non-citizen ineligible for asylum. The definition of "aggravated felony" was considerably expanded in 1996. See § 8-2.2, supra.

In re Q-T-M-T (BIA 1996) dealt with a Vietnamese man convicted of illegal sale of firearms prior to the date on which the IIRIRA amendments became effective. For this transitional period, the BIA stated that a non-citizen convicted of an aggravated felony who has been sentenced to less than 5 years' imprisonment is subject to a rebuttable presumption that he or she has been convicted of a particularly serious crime which bars his or her eligibility for withholding of removal under INA § 241(b)(3). The appropriate standard to evaluate whether the non-citizen has overcome the presumption that he or she has committed a particularly serious crime is "whether there is any unusual aspect of the alien's criminal conduct that convincingly evidences that the crime cannot rationally be deemed 'particularly serious' in light of treaty obligation under the Protocol [relating to the Status of Refugees]." In the Q-T-M-T case, the nature and circumstances of the respondent's convictions for illicit trafficking in firearms fulfilled the definitions of both "aggravated felony" under INA § 101(a)(43)(C) and also "particularly serious crime" under the Protocol, such that the non-citizen was disqualified from relief from removal.

The Q-T-M-T holding was considerably narrowed by In re L-S-(BIA 1999), where the Board dealt with a Laotian man who was convicted of bringing an illegal alien into the United States and was sentenced to approximately three and a half years. The Board stated that although the per se rule (that any aggravated felony disqualifies the applicant from asylum status because such a felony constitutes a "particularly serious crime") applies in the context of asylum applications, it found no grounds to apply the same rule in the context of withholding of removal proceedings. The Board reasoned that because withholding of removal does not necessarily lead to permanent residency, allowing a non-citizen to apply for withholding of removal will "preserve the balance between upholding our international obligations under the Protocol and protecting the safety of the public." The BIA stated two different rules for applying the per se "particularly serious crime" rule to asylum and withholding of removal. While "any alien convicted of an aggravated felony is considered to have been convicted of a particularly serious crime" in the context of asylum, the same rule applies only if the individual "was sentenced to a term of imprisonment of 5 years or more" in the context of withholding of removal. The Board adopted the "seriousness standard," which included factors such as "the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and most importantly, whether the type and circumstances of the crime indicate that the respondent is a danger to the community."

The Board of Immigration Appeals in Matter of McMullen (BIA 1984) concluded that the non-citizen's effective membership in the Provisional Irish Republican Army, a "clandestine, terrorist organization" engaged in the persecution of individuals opposed to the organization and its terrorist activities, constituted persecution of others on account of political opinion, making the applicant ineligible for asylum. The Board also found that the organization's random bombing of civilian targets during the period of the applicant's active membership provided "serious reasons for considering that the alien has committed a serious non-political crime outside the United States." The Board held that a crime is non-political if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.

In addition to statutory ineligibility, asylum may be denied as a matter of discretion by either the asylum officer or the immigration judge with jurisdiction over the case. A common basis for discretionary denial of asylum, even though statutory eligibility has been proved, involves cases where the non-citizen has fraudulently or grossly circumvented U.S. legal procedures to enter the U.S. and make an asylum claim. See, e.g., Matter of Salim (BIA 1982). In Matter of Pula (BIA 1987), however, the Board did not find the applicant's use of false documents to enter the U.S. such a disqualifying factor as to justify denial of asylum or the exercise of discretion. The negative factor of fraud had to be weighed against such positive factors as fear of persecution, lack of knowledge about procedures for seeking refugee status, family ties in the U.S., etc.

After IIRIRA, the Secretary for Homeland Security may in his or her discretion deny an asylum application if the non-citizen may be removed to a third country which has offered resettlement and "in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion." INA § 208(a)(2). The Secretary's determination with regard to such a safe third country is not subject to judicial review. See INA § 208(a)(3).

d. Right of notice

The courts have differed over whether non-citizens must be informed of their right to apply for asylum. The court in Nunez v. Boldin (S.D.Tex.1982) decided that the Due Process protection of non-citizens within the borders of the United States requires that citizens of El Salvador and Guatemala held at an INS detention facility be informed of their right to apply for asylum. The United States has "by treaty, statute, and regulations, manifested its intention of hearing the pleas of aliens who come to this country claiming a fear of being persecuted in their homelands." The court stated that although no regulation specifically requires immigration authorities to inform detainees of their right to apply for asylum, failure to do so may effectively render these treaties and statutes virtually nonexistent for the majority of non-citizens who would otherwise claim their benefits.

The court in Jean v. Nelson (11th Cir.1984) took an opposing view. The court concluded that "too many asylum applications may only bury the truth by straining INS resources and preventing careful assessment of individual claims. If the volume of asylum claims rises significantly, the INS may feel compelled to rely more and more on group profiles and less on individual evidence and credibility." The court held that although aliens have a protected statutory and regulatory right to apply for asylum, the Constitution, the Refugee Act, and its regulations do not require immigration authorities to inform non-citizens of this right.

The decision in Orantes-Hernandez v. Thornburg (9th Cir.1990) and the settlement in American Baptist Churches v. Thornburg (N.D.Cal.1991) imply that non-citizens must be notified of their right to apply for political asylum and the right to be represented by counsel at no cost to the government. In Orantes-Hernandez, the court held that the INS had to advise the Salvadorans seeking entry of their rights in English and Spanish. Immigration authorities must tell detainees that they are being detained for an immigration violation, that they will be given written notice of their rights prior to deciding whether to return voluntarily to El Salvador, and that they will have to acknowledge that they received the written notice of their rights (called an "Orantes advisal").

The written notice advises the non-citizen that he or she has the privilege to be represented by counsel, the right to a removal hearing, the right to apply for political asylum, and the right to request a voluntary departure. In addition, each detainee must be given a list of organizations that provide free legal services in the area. The ABC settlement, discussed in greater detail below, reiterates these requirements. Moreover, 8 C.F.R. § 240.11(c) requires the immigration judge presiding over a removal proceeding to advise the non-citizen that he or she may apply for asylum in the U.S. if the non-citizen expresses a fear of persecution upon returning to his or her country of origin.

A non-citizen who has been found removable and requests a reopening of removal proceedings to apply for asylum may be denied that opportunity if he or she has not reasonably explained the failure to apply for asylum prior to completion of the initial removal proceedings. INS v. Abudu (Sup.Ct.1988). Abudu, a citizen of Ghana, had expressly declined to seek asylum during removal proceedings. Upon motion to reopen, Abudu alleged that a surprise visit from a former acquaintance, who had become a high official in the government of Ghana, was aimed at enticing Abudu to return to Ghana in order to force him to disclose the whereabouts of his brother and other enemies of the government. All the other facts upon which Abudu based his claim were available at the time of the removal hearing. The Supreme Court held that the Board of Immigration Appeals did not abuse its discretion in holding that Abudu had not reasonably explained his failure to request asylum during the initial removal proceedings as required by 8 C.F.R. § 3.2. If Abudu had made a timely application for asylum, supported by the same factual allegations and evidence set forth in his motion to reopen, the immigration judge would have been required to grant him an evidentiary hearing. But an "alien who has already been found deportable has a much heavier burden when he first advances his request for asylum in a motion to reopen."

A non-citizen who has a pending application for asylum becomes eligible for employment authorization 180 days after filing the application. INA § 208(d)(2). The applicant must file an initial application for employment authorization (I-765) not earlier than 150 days after the date on which he or she submitted a complete asylum application. The BICS shall grant or deny the application for employment in 30 days from the date of filing of the Form I-765. The employment authorization remains valid until the end of the authorization period or sixty days after an asylum officer's denial of asylum, whichever is longer.

If the non-citizen's application for asylum is granted, he or she will be eligible for permanent residence after one year. If the asylum officer does not grant the asylum application, the officer refers the case for removal proceedings at which the non-citizen may again apply for asylum beforean immigration judge. 8 C.F.R. § 208.14. If, however, the non-citizen has a valid nonimmigrant status at the time of the application, he or she may remain in the U.S. until that status expires. 8 C.F.R. § 208.22.

e. Approval and Adjustment of Status

If the application for asylum is approved, asylum status is granted for an indefinite period. Employment authorization is automatically granted as well. In addition, a spouse or children may be granted asylum. 8 C.F.R. § 208.21. An immigration judge or the BIA may reopen proceedings to terminate a grant of asylum. The immigration officer seeking to terminate the grant of asylum must establish by a preponderance of the evidence that conditions have changed in the asylee's country of origin, that the asylee was guilty of fraud in the application process, or that the asylee had committed an act that would have been grounds for denial. An immigration judge may terminate asylum at any time after the non-citizen has been provided a notice of intent to terminate. The termination may occur in conjunction with a removal proceeding. 8 C.F.R. § 208.24.

A non-citizen who has been granted asylum and who remains in the U.S. for one year may apply for adjustment of status to that of a permanent resident. 8 C.F.R. § 209.2. The asylee must generally meet the normal admission requirements of any immigrant with the exceptions that an applicant for asylum does not require labor certification, proof of self-sufficiency, a valid visa, or proof of literacy. The acceptance of unauthorized employment by the asylee does not bar adjustment of status. A non-citizen may be permanently ineligible for any immigration benefits, however, if he or she knowingly files a frivolous application for asylum. The non-citizen also must continue to be a refugee within the meaning of INA § 101(a)(42) and must not have been firmly resettled in a foreign country. 8 C.F.R. § 209.2(a). Further, there must be a number available from the admission allowance for refugees in general, as provided by INA § 207(a), and there is an annual numerical limitation of 10,000 on the number of adjustments for asylees. 8 C.F.R. § 209.2(a); INA § 209(b). If that number is exceeded, a waiting list is established. Such a numerical limitation on the number of asylees whose status may be adjusted under section 209(b) shall not apply to a non-citizen who: (a) was granted asylum before November 29, 1990; (b) is no longer a refugee due to a change in circumstances in a foreign state; and (c) meets other requirements for adjustment of status under this section.

The denial of an application for adjustment of status is without prejudice to the applicant's right to renew the application in removal proceedings. 8 C.F.R. § 209.2(f). If the application is granted, the date of admission as a permanent resident is recorded as one year prior to the actual date of approval. INA § 209(b). The date on which the non-citizen becomes a permanent resident will determine when the non-citizen may apply for citizenship. The existence of a waiting list for asylee adjustment of status is significant since the non-citizen must frequently wait several years before actually qualifying for permanent residence.

§ 10-2.4 Temporary Protected Status

Temporary Protected Status is a congressionally defined remedy which authorizes the Secretary for Homeland Security to provide temporary protection to nationals of countries experiencing civil upheaval or natural disasters. Previously, the Attorney General had provided temporary relief to nationals who could not return home due to country-wide chaos by granting voluntary departure for a limited period of time through a administrative program called Extended Voluntary Departure. Extended Voluntary Departure was devised by the executive branch to respond to changing world events; it was not, however, codified in the INA or other statute. The 1990 Act amended the INA by replacing EVD with a similar program called "Temporary Protected Status" (TPS). INA § 244. Under the Homeland Security Act, administration of this program was transferred from the Attorney General to the Secretary for Homeland Security.

The 1990 Act specifically provided eligibility for Salvadorans who were in this country as of September 19, 1990, and applied for TPS between January 1 and June 30, 1991. Immigration Act of 1990, Pub.L.No. 101-649, § 303, 104 Stat. 4978, 5036. Salvadorans meeting § 303 of the 1990 Act requirements received protected status for 18 months. The Secretary possesses the discretion to make TPS designations except for the initial mandatory grant to Salvadorans, which was statutorily imposed. Soon after the 1990 Act, Kuwait, Liberia, and Lebanon received TPS designations as well. 56 Fed.Reg. 12745-47. Bosnia-Herzegovina, Burundi, Rwanda, Sierra Leone, Somalia, and Sudan have also received TPS designation.

The 1997 extension of the TPS designation to Montserrat is the first example of granting this status to the victims of natural disaster. In 1999, Nicaragua and Honduras were also granted TPS as a result of the flooding in those countries. Similarly, in an effort to assist El Salvador in recovering from two devastating earthquakes in 2001, the Attorney General designated El Salvador for TPS benefits for a period of 18 months. As a result of the new designation, El Salvador is now one of the eleven countries currently designated for TPS.

Under TPS, the Secretary may designate a country or region as too unstable for aliens to return. For example, in 1998, the Attorney General extended TPS designation to a region of Yugoslavia - the province of Kosovo -to provide temporary relief to residents of Kosovo who were victims of the ethnic conflict that devastated the province.

One of the three conditions must be met before the Secretary can grant TPS: (1) ongoing war or armed conflict would pose a serious threat to a non-citizen who sought to return to that country; (2) "substantial, but temporary disruption of living conditions" due to earthquake, flood, drought, epidemic, or other environmental disaster that has caused the foreign state to request TPS designation because it temporarily cannot adequately handle the return of its nationals; (3) "extraordinary and temporary conditions" preventing the safe return of a country's nationals, so long as the national interest of the United States is not compromised by allowing their temporary stay. INA § 244(b)(1).

TPS may be granted for up to eighteen months, and the Secretary's decision to designate a country for TPS is not subject to judicial review. INA §§ 244(b)(2), 244(b)(5)(A). The Secretary must, however, establish an administrative procedure for the review of denials. INA § 244(b)(5)(B). At least 60 days prior to the end of the initial TPS period, the Secretary must review the conditions in the foreign state and determine whether the TPS designation should be terminated or extended. TPS designation may be extended for 6, 12, or 18 months if the Secretary determines that the conditions that led to the TPS designation are still met. INA § 244(b)(3).

The benefit of TPS is freedom from removal and authorization for employment during the effective period of protection. INA §§ 244(a)(1),(2). Also, non-citizens with TPS may not be detained on the basis of their immigration status. INA § 244(d)(4). The grant of TPS is similar to the grant of nonimmigrant status and a non-citizen granted TPS is considered as being in, and maintaining, lawful status. INA §§ 244(a)(5), 244(f). The non-citizen is restricted, however, in his or her ability to travel abroad and to receive welfare. INA § 244(f)(1)-(3). As soon as the non-citizen's TPS terminates, removal proceedings may begin. The ABC settlement discussed below, however, required that each Salvadoran be given the opportunity for a new asylum interview and adjudication.

a. Procedures

A national of the country designated for TPS should file an application with the BCIS district director having jurisdiction over the applicant's place of residence during the registration period established by the Secretary. 8 C.F.R. § 244.7. If the non-citizen has a pending removal proceeding before the immigration judge or Board of Immigration Appeals at the time of designation, the proceeding will be terminated and the non-citizen will receive an opportunity to apply for TPS unless he or she is determined to be ineligible for TPS. 8 C.F.R. § 244.7(d).

To be eligible for TPS, the applicant must establish that he or she is a national of the designated foreign state; has been continuously physically present in the United States since the effective date of TPS designation; continuously resided in the United States since a date designated by the Secretary; and is generally admissible as an immigrant under INA § 212(a). 8 C.F.R. § 244.2. Several of the inadmissibility provisions (e.g., documentation requirements, limitations on foreign medical graduates, the need for a labor certificate, and the prohibition on becoming a public charge) do not apply to TPS or may be waived. Certain inadmissability provisions, however, including those covering criminal offenses, drug trafficking, matters relating to national security, and Nazi persecution may not be waived. 8 C.F.R. § 244.3. INA § 244(c)(2)(B) makes non-citizens who have been convicted of any felony or more than 2 misdemeanors in the United States ineligible for TPS.

To apply for TPS, the non-citizen must submit an I-821 application form, an I-765 work authorization form, a filing fee, supporting evidence of identity and nationality, proof of residence, two identical color photos, and a fee for finger printing if he or she is age 14 or older. 8 C.F.R. § 244.6. The applicant may be required to appear in person and present documentary evidence to establish his or her eligibility. INA § 244.8. Also, a non-citizen subject to removal proceedings may raise eligibility for TPS as a defense.

b. The ABC Settlement

In American Baptist Church v. Thornburg (N.D.Cal.1991) the INS and ABC reached a settlement in a class action suit against the Service for discriminatory handling of asylum cases involving Guatemalans and Salvadorans. Unless removal is based on criminal conduct or the proceedings were commenced after November 30, 1990, removal proceedings for non-citizens already present in the U.S. are stayed during the pendency of their de novo asylum adjudications; removal proceedings are closed until the new adjudications have been made. All members of the class are entitled to employment authorization in the meantime and the "non-frivolous" standard does not apply. A significant aspect of the settlement is that the government is barred from considering the following factors in making asylum determinations: (1) U.S. foreign policy as regards the applicant's country of origin; (2) border enforcement considerations; (3) U.S. support of the applicant's country of origin; and (4) the applicant's political or ideological beliefs. All Salvadorans and Guatemalans in detention were to be released, advised of their "ABC rights," and given the appropriate forms for complying with formal procedures. The TPS designation for El Salvador expired in 1992. As discussed above, in 2001, the Attorney General newly designated El Salvador to provide temporary relief from the earthquakes. Salvadorans who were "continuously physically present" in the U.S. since March 9, 2001, and "have continuously resided in" the U.S. since February 13, 2001, were eligible to apply for TPS as well as any Salvadoran who had already applied for "any other benefit or protection." Guatemala is not currently designated as a TPS country.