201604050959236983By Attorneys Rafael Torres, III & Nancy E. Miller

As the world continues to suffer from tumultuous conflicts and wars, there are people in many countries who are victims of persecution and might desire to seek safety outside their home country. The United States accepts applications for asylum or refugee status from those people fleeing their home country due to their fear of persecution based on specific protected grounds. The process of applying for, and receiving, asylum or refugee status is complicated and constantly evolving. Thus, any person potentially interested in seeking asylum or refugee status should consult a knowledgeable and experienced immigration attorney to navigate this path to relief.

The terms asylum and refuge are not interchangeable. They refer to distinct avenues of relief based on the location of the person applying for relief. If the applicant is outside the United States, they would apply for refugee status and their application would be adjudicated while the applicant remains outside the United States. If the applicant is within the boundaries of the United States, the person would apply for asylum status and their application would usually be adjudicated while the applicant remains inside the United States. Employment authorization may become available to the applicant for asylum if their asylum application remains pending before the United States Citizenship and Immigration Service (“USCIS”) for a requisite period of time. One year after having been granted asylum, the asylee may apply for a green card.

The protected grounds upon which a claim for asylum or refugee status may be made are the same for both programs. There are five, and they are: 1. Race, 2. Religion, 3. Nationality, 4. Membership in a Particular Social Group, and 5. Political Opinion. An applicant may base their claim in one or a combination of the above-enumerated protected grounds. To illustrate, we can consider the following hypothetical.

An indigenous person is on their way home from a religious ceremony and suffers a violent attack. During the attack, the persecutor(s) makes racist and derogatory comments about the indigenous person’s race and threatens the indigenous person with additional violence if the indigenous person ever returns to practice their religion.

In the above hypothetical, the indigenous person might apply for asylum or refugee status based on a combination of the protected grounds of race, religion, and possibly membership in a particular social group of native indigenous persons. As can be seen in this relatively short hypothetical, possible legal arguments in support of the person’s claim may become quite complicated.

One protected ground that has recently received attention from the courts is the protected ground of Membership in a Particular Social Group. On March 21, 2016, the United States Court of Appeals for the Ninth Circuit published a decision in the matter of Ramirez-Munoz v. Lynch regarding a claim of Mexican citizens about their fear of persecution based on membership in a particular social group of “imputed wealthy Americans.” In this case, the Court found that the proposed group was not cognizable. In other words, the group as defined was not recognized as a viable protected ground for a claim of relief in the form of asylum. This does not mean that a different definition for a similar group might not be valid particular social group. In another venue, the Board of Immigration Appeals is currently accepting amicus curiae, also known as “friend of the court,” briefs on the issue of whether immediate family members, such as husbands and wives and their children, can be considered a cognizable particular social group. Amicus curiae briefs are those that are submitted by a person or a group who is not involved in the case pending before the court, but who has a strong interest in the subject matter of the case and desire to influence the court’s decision.

The nuances within each possible claim need careful analysis in order to provide the best chances for success. In addition, the evidence submitted in support of the claim must be strong enough to persuade the asylum officer that the applicant has a well-founded fear of harm if they return home. It is important to remember that immigration law is constantly in flux and a claim that might not have been viable in the past may well be approved under current law. Any non-citizen who fears being harmed if they return to their home country should consult a knowledgeable and experienced immigration attorney to determine if they are eligible to apply for asylum.

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