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James Sheets

The terms “refugee” and “asylee” are frequently used interchangeably. The fact is that both terms share a common trait; both refer to a person who, under US immigration, is a person “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”.

Differences Between Asylum and Refugee

There are, however, differences. A person outside the US who is either still in their home country or country of the last habitation and who is looking to come to the US because of persecution is a refugee. On the other hand, a person who is either entering the US at a port of entry or already in the US and has fled their country of origin based upon a fear of persecution and has filed for asylum status is an asylee.  

What is a Refugee?

Because a refugee is out of the country, this person may first be assisted by an international aid organization such as the United Nations High Commission on Refugees (UNHCR), a US Embassy, or a NGOs or non-governmental organization. If intending to request asylum in the US, the person will be screened for security and medical eligibility.    

If eligible, the person will be assigned a priority for resettlement according to the extent to which their persecution is already a recognized humanitarian concern and if the person has a case for family reunification. Once the person arrives or has arrived in the US, the refugee must apply for asylum under US law within one year of their arrival. This is also true for an asylee. Failing to file an asylum application within this period will be interpreted as a waiver.  

File the Asylum Application

Once a person has applied for asylum, they will receive a form of protected status, meaning they are given protection against deportation or removal, either temporarily or permanently.    

In either situation, the person can legally remain in the US until their asylum application is approved or denied. This protected status will apply to any dependents if the asylum is a parent. Once received, the US Immigration authorities can issue the applicant a temporary employment authorization, allowing the asylum seeker to seek employment in the US. This authorization is temporary and must be renewed periodically.  For more information on Asylum in the US read our article: Can I Claim Asylum in the United States?

Challenges to Asylum Application Approval

The actual approval of approving an asylum application can present challenges. There are two reasons for this. First, the number of asylum applications to the US increased dramatically in recent years. While forty years ago, asylum applicants usually came from a few war-devastated areas, more recent applicants include persons leaving areas of the world that are not only war zones but are affected by political corruption and criminal violence. The definition of persecution thus has expanded over time to include persecution associated with crime gang reprisals as well as political targeting. Waiting for asylum approval may take years.  

There are also legal challenges. A person requesting asylum has the burden of proving their case of persecution. Unlike other countries such as Mexico, which has a single-prong test, the US has a two-prong standard for granting asylum. First, a person seeking asylum must prove that they fear of persecution is reasonable, and second, their fear must be objective or based on facts that are demonstrated.    

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Documenting Reasons for Asylum

For some asylees, this can be difficult because many events relative to their persecution can no longer be documented. After, the events which caused an asylee to flee may have happened months or years before. In addition, many asylum seekers arrive with little or no personal belongings, including documentation that would be helpful to their case.    

There are, however, other means to provide evidence to support an asylum application. First, US Immigration courts will consider country reports by the US Department of State as supportive of claims of political persecution. Newspaper accounts can also be submitted. Photos and pics can be of help. Personal testimony of the asylum or any other person who directly experienced the persecution can also be submitted. In making the decision, US Customs and Immigration Services (US CIS) will consider various forms of evidence.  

Evidence for Asylum  

In completing an asylum application, one must to careful to demonstrate that the fear of persecution is based on evidence and not merely supported by first-person testimony: it is also important to remember that the person claiming asylum must demonstrate that their fear of persecution is reasonable and that returning to their country of origin will place that person in peril of their life.    

This is why some asylum applicants are granted temporary asylum or relief in the form of Temporary Protected Status (TPS). In these instances, the US State Department has determined that the cause of persecution in a particular country will subside or discontinue sometime in the pending future. Thus, TPS is sometimes granted in response to a political coup resulting in temporary political violence. In these instances, the applicant may be granted temporary protection for a year or two.  

The Asylum Process Can Take Time

One more point: applicants may need to be patient because the approval of an asylum application can be a two-stage process. After the asylum application is submitted, the initial response from US CIS may take several months to schedule an initial hearing. In this initial hearing, the asylum application is given a preliminary review to determine whether it is complete. At this point, the applicant may receive work authorization.    

Within the next two years, the asylee will receive a determination hearing by a hearing officer (non-judicial) based on the merits of the asylum case. If the application is approved, the asylee will receive a temporary green card followed by a permanent green card.  If you still have more questions, check out our article: The Differences Between Affirmative Asylum and Defensive Asylum

Asylum Application Denial

If the application is denied, the asylee may appeal to the Board of Immigration Appeals, a federal administrative court, and receive another hearing. This hearing will again review the entire application from the start and again decide upon the merits. If the application is denied at the appeals level, the applicant will be required to leave the country voluntarily or, if the applicant resists, through removal.  

As the consequences of this decision are usually life changes, any person seeking immigration relief should seek advice and counsel for a qualified attorney. As mentioned, all asylum applications will be scrutinized by US CIS if there is a risk of not being approved. Obtaining proper representation from an immigration attorney can make all the difference.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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