As a result of the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), all asylum-seekers who arrive in the United States without proper travel documents or false documents will be questioned by an "examining immigration officer" to determine whether they intend to apply for asylum or fear persecution. If a person does not express an intent to apply for asylum, the immigration officer can order the alien removed or excluded from the United States immediately. The officer's decision to remove or exclude the alien is not subject to any further hearing or review. If the alien wants to apply for asylum, however, the examining officer will then refer him or her for an interview before an "asylum officer".
There is no guarantee that the alien may be represented at the interview with the asylum officer, or that the interview will be conducted in the alien's native language under the AEDPA. However the asylum applicant may consult a representative before the interview with the asylum officer as long as it does not unreasonably delay the interview. The asylum officer should have professional training in country conditions, asylum law, and interview techniques, and should be supervised by an officer who was similarly trained.
The asylum officer will interview the asylum applicant to determine whether he or she has a credible fear of persecution. A "credible fear of persecution" exists when: (1) it is more probable than not that the statements made by the alien in support of his or her claim are true, and (2) there is a significant possibility, in light of such statements and of such other facts as are known to the officer, that the alien could establish eligibility for asylum. If the asylum officer determines that the asylum applicant does not have a credible fear of persecution, that determination will be reviewed by the asylum officer's supervisor, but is not subject to further review unless the asylum applicant requests review before an immigration judge. In fact, the AEDPA expressly prohibits any administrative or judicial review of a finding that the applicant lacks a credible fear of persecution other than the immigration judge's review, which is less than a full asylum hearing.
On the other hand, if the asylum officer believes that the asylum seeker does have a credible fear of persecution, he/she would be permitted to present a claim for asylum. The asylum applicant would be detained pending that interview.
Procedure for Applicants Already in the United States
Under the AEDPA, aliens who are accused of having entered the United States without inspection (EWI) at any time, including those already in the United States, will also be subject to the summary exclusion procedures. Essentially, such aliens will not be considered to have made an entry into the United States, but instead will be considered to be "back at the border", and thus subject to summary exclusion. Since they will no longer be treated as if they made an entry into the United States, such individuals will not be eligible for any defenses to or relief from deportation that are currently available, such as suspension of deportation, which is now available for certain EWI aliens who have lived in the United States for ten (10) years or more.
Time Limit to Apply for Asylum-One Year Filing Deadline
Applicants who are already in the United States in other visa categories or who entered without inspection must apply for asylum within one (1) year of arrival in the United States or one (1) year after April 1, 1997, whichever is later in time, absent changed country conditions or extraordinary circumstances.
Definition of a Refugee
Any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside 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.
Requirements of an Asylum Claim
To prevail on an asylum claim, the asylum applicant must establish:
1. that he/she has a well founded fear of persecution or has suffered past persecution;
a. Well-founded fear of persecution is a reasonable fear of persecution. Persecution is defined as a showing that harm or suffering will be inflicted upon the alien in order to punish him or her for possessing a belief or characteristic the persecutor seeks to overcome.
2. that such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion; and
3. that asylum should be granted in the exercise of discretion.
Withholding of Removal
The consideration of withholding of removal is mandatory and thus may be available even if asylum is denied in the exercise of discretion. The standard of proof under which a withholding of removal claim is evaluated is a "clear probability" of persecution, rather than the more generous "well-founded fear of persecution" in asylum cases. An alien granted withholding of removal may remain in the country and obtain employment authorization, but unlike asylum, this status does not lead to permanent residence.
Withholding of removal is not available to affirmative asylum applicants (i.e., aliens who apply directly to the Immigration and Naturalization Service for asylum before being put into proceedings). But withholding can always be requested before an immigration judge and a request for asylum is automatically considered a request for withholding as well. No additional application or form is required.
Statutory Bars to Asylum and Withholding of Removal
An alien will be denied asylum if he/she was firmly resettled in a third country before entering the United States. An alien is considered "firmly resettled" if he/she was offered resident status, citizenship status, or some other type of permanent resettlement by another country and traveled to and entered that nation as a consequence of her flight from persecution.
An alien is also ineligible for asylum and withholding of removal if he/she has ordered, incited, or assisted in the persecution of others on account of race, nationality, religion, membership in a particular social group or political opinion. An alien who poses a danger to the security of the United States may be denied asylum or withholding.
An alien may also be ineligible for asylum or withholding if he/she has committed an "aggravated felony" or "particularly serious crime" in the United States.
An alien is also ineligible for asylum or withholding if there are "serious reasons for believing" that the alien has committed a serious, non-political crime outside the United States. A conviction is not necessary.
