Asylum Legal Help:Persecution Claims, Affirmative and Defensive Procedures, and Recovery

8 U.S.C. § 1101(a)(42). Person who is unable or unwilling to return to home country because of persecution or well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Subjective component: applicant actually fears persecution. Objective component: reasonable person in same circumstances would fear persecution. INS v. Cardoza-Fonseca (1987). Lower than 'more likely than not' standard.

Specific past harm establishes presumption of well-founded fear. Government can rebut with: changed country conditions, internal relocation possibility, fundamental change in personal circumstances. Strong presumption.

Race, religion, nationality, political opinion, particular social group. Persecution must be 'on account of' one of these. Mere harm alone insufficient.

Persecution based on racial identity. Specific evidence of racial targeting. Often combined with national origin.

Persecution for religious belief or practice. Specific evidence of religious targeting. Conversion to disfavored religion qualifies.

Persecution based on national or ethnic origin. Often combined with race.

Actual or imputed political opinion. Whistleblowing in some contexts. Refusal to participate in political activities. Specific political activism. Imputed political opinion when persecutor attributes opinion to applicant.

Most contested ground. Group sharing immutable characteristics or fundamental characteristics. Specific tests vary by circuit. Common PSGs: family relationships, sexual orientation, gender (in some circuits), former gang membership (limited).

Substantial harm beyond mere discrimination. Threats, violence, imprisonment, torture, severe economic deprivation. Cumulative harm sometimes qualifies. Specific severity required.

Persecution by government, persecution by non-government actor government cannot or will not control. Both qualify. Specific evidence of government acquiescence or inability.

Government can argue applicant could safely relocate within country. Burden on government to show reasonable. Specific internal flight analysis.

Persecutor of others (specific exclusion). Aggravated felony conviction. Particularly serious crime. Firm resettlement in third country. Reasonable basis to believe applicant is danger to U.S. security.

Filed with USCIS Form I-589 while in valid status or within 1 year of arrival. Not in removal proceedings. Asylum office interview at USCIS asylum office. Less adversarial than immigration court.

Application filed (no fee). Biometrics scheduled. Interview at asylum office. Officer reviews application, asks questions about claim. Decision: grant, refer to immigration court (if not granted), denial.

Less formal than immigration court. No government attorney. Officer interviews applicant. Specific questions about claim, country conditions, persecution. Critical to be prepared.

Grant: asylum granted, can apply for green card after 1 year. Referral: case sent to immigration court for de novo review by immigration judge. Denial: only if applicant has lawful status.

Raised as defense in removal proceedings before immigration judge. After NTA issued. More formal adversarial proceeding.

Application filed at master calendar hearing or specific deadline. Set for individual merits hearing. Witnesses, documentary evidence, testimony. Government attorney cross-examines.

Substantial backlogs at both USCIS asylum offices and immigration courts. Cases pending years. Specific local backlogs vary.

Affirmative often preferable when eligible (less adversarial, lower stakes). Defensive may be only option for those in removal proceedings.

Asylum applicants can apply for EAD 150 days after asylum application filed (with 30-day processing window). Important for survival during pendency.

Spouse and unmarried children under 21 included on principal application or by separate I-730 petition after grant.

Detailed account of persecution. Specific incidents, dates, locations. Witnesses if available. Testimony at interview/hearing.

Identity documents, evidence of past persecution (medical records, photos), threats received (writings, recordings), evidence of organizational membership or political activity.

Friends, family, colleagues who can corroborate claim. Specific incidents witnessed. Country background. Affidavits with specific dates and details.

Critical category. State Department Country Reports, human rights organizations reports (Amnesty International, Human Rights Watch, Freedom House), news articles, expert witness testimony, academic articles.

Medical records of past persecution injuries. Mental health records of trauma. Forensic medical evaluations. Specific organizations conduct forensic evaluations for asylum cases.

Trauma evaluations, PTSD diagnoses. Specific evaluations by psychologists. Useful for credibility and harm severity.

Country experts, persecution patterns experts, academic experts. Specific expert testimony often substantially affects outcome.

Reports of incidents to police (or evidence of police inaction). Specific evidence of government failure to protect.

Of injuries, damage, demonstrations attended, organizational involvement. Time-stamped if possible.

Organizational membership (political party, religious group, ethnic association). Specific membership cards, photos at events.

Letters, emails, text messages threatening applicant. Translations. Time-stamped. Witnesses to threats.

Birth certificate, identity documents, passport showing entry/exit. Establishes country origin.