How to Win Your Asylum Case

Applying for asylum can be a daunting process. The stakes are incredibly high, and the system can seem complex and confusing. However, by understanding the essential steps, legal requirements, and ways to strengthen your case, you can significantly increase your chances of success. In this blog, we will explore in detail how you can prepare and present a winning asylum case. It is important to note that winning your asylum case not only involves your own preparation and involvement with your case but working closely together with an immigration lawyer.

1. Understand the Basics of Asylum

Before you begin the asylum process, it's critical to understand what asylum is and why it's granted. Asylum is a form of legal protection offered by a country to foreign nationals fleeing persecution in their home countries. You must meet the following key criteria to qualify for asylum:

Fear of Persecution: You must demonstrate a well-founded fear of persecution based on one or more of the following grounds:
- Race
- Religion
- Nationality
- Membership in a particular social group
- Political opinion

This means that economic reasons, such as a lack of jobs, are not a reason for asylum. You must specifically tie the harm to one of the enumerated grounds above. For example, a person would be eligible for asylum if the government is harming them because of their political or religious views. However, someone would not be eligible for asylum due to political instability, generalized violence, high crime, or a poor economy.

"Membership in a particular social group" is one of the five protected grounds for asylum and refers to individuals who share a common characteristic that is either immutable (cannot be changed) or so fundamental to their identity that they should not be required to change it. This group must also be recognized within their society. Examples include survivors of domestic violence, LGBTQ+ individuals in countries where they face persecution, or people from a specific clan or family targeted for their status. For instance, a woman fleeing a country where gender-based violence is rampant, and the government fails to protect women, could claim asylum under this category. Similarly, someone from a gang-ridden area targeted due to their resistance to recruitment could also seek asylum on these grounds.

Government Involvement. The persecution must be committed by the government or a group that the government cannot or will not control. For example, the government must be the one harming you. Alternatively, if you can prove that the government is allowing other people to harm you and that the government fails to protect you, you may be eligible for asylum.
Timely Application. You must file your asylum application within a year of arriving in the country, unless you fall within an exception. Some exceptions include maintaining lawful status, changed circumstances, or extraordinary circumstances. If you are filing for asylum more than one year after your entry in the US, you will need to determine if you qualify for an exception to the one year filing requirement.

The "nexus" requirement for asylum refers to the need to establish a clear connection between the harm you face and one of the five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group. This means that the harm or persecution must be motivated, at least in part, by one of these factors. For instance, if a person is targeted due to their political beliefs, they must demonstrate that their political opinion is a central reason for the persecution they face, rather than random violence or generalized fear. The burden is on the applicant to prove this link, showing that their persecution is not just incidental but directly related to the protected grounds.

2. Gather Evidence

Winning your asylum case hinges on how well you can support your claim with credible evidence. This evidence will form the foundation of your argument that returning to your home country would put you at significant risk of harm. Here are the types of evidence you should gather:

Personal Statements. Write a detailed declaration explaining your experiences. Be clear, chronological, and specific. Describe the incidents of harm or threats and how they are linked to your race, religion, nationality, political opinion, or membership in a social group. Be sure to also fully describe what you think will happen to you if you return to your home country, what type of harm you will suffer, and who will inflict the harm. The more details you provide, the better, however, be careful to make sure your statement is not so long so as to include irrelevant or unneeded information.
Supporting Documents. Collect any available documents that corroborate your story. This could include:
- Police reports
- Hospital or medical records
- News articles about similar cases or incidents in your country
- Letters from family, friends, or colleagues who witnessed or have knowledge of your persecution

It is important to note that many asylum applicants do not have evidence regarding the harm they suffered. If you do, you should certainly include it. If you do not, your declaration will serve as evidence regarding what happened or what will happen to you.

Country Conditions Report. Obtain independent research on the political and social conditions in your country. These reports, available through organizations like Human Rights Watch or Amnesty International, can provide crucial context that supports your fear of persecution. It is important to also use the Department of State Human Rights Reports and International Religious Freedom Reports if your case is based on religion.
Expert Testimony. In some cases, having experts testify on your behalf can significantly strengthen your case. This could include country conditions experts, psychologists (if you’ve suffered trauma), or other professionals familiar with your situation.

What is Past Persecution?

When seeking asylum in the U.S., an applicant can base their claim on past persecution or a well-founded fear of future persecution. To establish asylum eligibility due to past persecution, the applicant must demonstrate they were subjected to significant harm or suffering in their home country based on one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.

Elements of Past Persecution

Serious Harm. The harm suffered must be more than mere discrimination or harassment. It generally needs to be severe, such as physical violence, threats to life, imprisonment, or significant psychological abuse. Courts have recognized that harm can be both physical and non-physical (e.g., severe emotional or psychological harm) if it rises to a certain level of severity.
Government Involvement or Inability to Protect. Past persecution must have been inflicted by the government, government officials, or groups that the government is unable or unwilling to control. For example, harm inflicted by a rebel group in a country where the government is powerless to protect its citizens might qualify.

Benefits of Proving Past Persecution

If an applicant can establish that they have experienced past persecution, they are generally presumed to have a well-founded fear of future persecution, which strengthens their asylum claim. The government would then bear the burden of proving that conditions in the applicant’s home country have changed significantly, such that they would no longer be at risk.

Exceptions and Limitations

Changed Circumstances. Even if past persecution is proven, asylum can be denied if the conditions in the applicant’s home country have substantially improved, eliminating the risk of future persecution.
Relocation. The asylum claim can be denied if the applicant could reasonably relocate within their home country to avoid future persecution.

Past persecution cases often involve evidence such as witness testimonies, medical records, or country conditions reports that detail human rights abuses.

Examples

Cases of past persecution that have been recognized include:

A person being imprisoned and tortured due to their political activism.
Members of a religious minority facing death threats or violence due to their religious practices.
Individuals targeted for persecution because of their sexual orientation, especially in countries where LGBTQ+ rights are not protected.

Proving past persecution can be a strong basis for an asylum claim. However, asylum law is complex, and success depends on providing detailed evidence and legal arguments. However, even if you do not have past persecution, you are still eligible for asylum based on a “well founded fear” of future harm.

Well Founded Fear of Future Harm

A well-founded fear of persecution is a core requirement for seeking asylum in the United States. This concept covers situations where an asylum seeker may not have experienced persecution in the past but faces a credible threat of persecution if they return to their home country. Here's how it breaks down:

Key Components of Well-Founded Fear:

Subjective Fear:
- The applicant must genuinely fear persecution. This is a personal, emotional element where the individual must show that they believe they will be persecuted if they return to their country.
- Evidence of subjective fear can include personal testimony detailing threats, actions of government authorities or non-state actors, or experiences faced by family members or people in similar circumstances.
Objective Reasonableness:
- The fear must be considered reasonable based on facts. Even if the applicant feels afraid, they must demonstrate that there is an objective basis for their fear. This could involve country conditions reports, evidence of systemic persecution, or specific laws targeting the individual’s protected status.
- Courts assess whether a "reasonable person" in similar circumstances would also fear persecution, considering country conditions and patterns of abuse against people with similar characteristics.

Probability Requirement

The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) has ruled that asylum seekers do not need to prove they have a 50% or greater chance of being persecuted. A 10% chance of future persecution can be enough to establish a well-founded fear, as long as the evidence presented is credible and supports the claim.

Fear of Future Persecution

Applicants may be granted asylum based on well-founded fear if they can show that there is a reasonable possibility of future persecution:

This can be supported by reports of human rights abuses, targeted discrimination, or violence in the applicant's home country.
Even if the applicant has never been harmed in the past, consistent and credible evidence of current or increasing threats can establish a well-founded fear.

Examples

A journalist may fear future persecution due to increased targeting of the press by a regime, even if they haven’t been harmed personally yet.
An LGBTQ+ individual from a country where homosexuality is criminalized might fear persecution due to laws and social attitudes, even if they’ve never been personally attacked.

What is Persecution?

Persecution refers to severe mistreatment or harm inflicted on an individual or group, often due to their identity or beliefs. In the context of asylum and refugee law, it involves systematic discrimination, violence, or threats due to specific characteristics like race, religion, nationality, political opinion, or membership in a particular social group.

Key Elements of Persecution:

Serious Harm. Persecution involves harm that goes beyond simple harassment or discrimination. It includes physical violence, threats to life or freedom, imprisonment, torture, or extreme psychological abuse.
State Involvement or Inaction. Persecution is typically carried out by government authorities or by groups that the government is unwilling or unable to control, such as militias or terrorist organizations.
Connection to a Protected Ground. The harm must be inflicted because of one of the protected grounds under U.S. asylum law, meaning the person is persecuted for who they are or what they believe, not just as a result of generalized violence or random crime.

Examples of Persecution:

Political persecution. Being targeted for your political beliefs or activism, such as imprisonment or torture due to anti-government protests.
Religious persecution. Facing violence or threats for practicing or not practicing a particular religion.
Ethnic persecution. Being harmed because of your ethnic background, such as ethnic cleansing or targeted attacks based on race.

3. Prepare for Your Interview or Hearing

After submitting your asylum application, you will be required to attend either an asylum interview (for affirmative asylum) or a court hearing (for defensive asylum). This is where you present your case in person to an immigration officer or judge. Preparing thoroughly is crucial to making a positive impression.

Asylum Interview

Be honest and consistent with your story. Any inconsistencies between your written statement and your verbal testimony can weaken your case.
Practice answering questions about your application with your lawyer or a trusted individual. Focus on explaining why you fear returning to your home country. It is important to review your declaration and every single document submitted with your asylum application to avoid any surprises during your interview.
If you're feeling anxious, it's normal. Consider seeking counseling or legal support to help manage stress before your interview.

Court Hearing

Know Your Case. Be familiar with the legal requirements of asylum, especially as they pertain to your case. This will help you anticipate what the judge may focus on. Be sure to remove every single document submitted with your asylum application, including your declaration, witnesses statements and country reports so that you are fully informed of everything submitted on your behalf.
Have Legal Representation. An immigration lawyer is critical in asylum hearings. They will present your case, help you prepare, and counter any arguments from the government’s lawyer. Legal representation significantly increases your chances of success.
Witness Testimony. If possible, bring witnesses to testify on your behalf, especially those who have direct knowledge of your persecution or the conditions in your country.

4. Be Credible and Consistent

One of the most important factors in winning your asylum case is credibility. The immigration officer or judge must believe that you are telling the truth. You should:

Be consistent. Avoid contradictions between your oral testimony, written declaration, and the evidence you submit. Even minor discrepancies can raise doubts about your credibility.
Explain inconsistencies (if any). If there are any inconsistencies, explain them immediately. For example, if there are gaps in your memory due to trauma, explain why you might not recall certain details.
Stay calm under pressure. Officers and judges may ask difficult or probing questions. Stay composed and answer honestly, even if the questions seem repetitive or challenging.

5. Address Legal Challenges and Exceptions

There are several legal hurdles that could potentially weaken your asylum case. Knowing how to address these challenges is key to winning:

The One-Year Filing Deadline. If you did not file for asylum within one year of your arrival, you need to provide a valid reason for the delay. This could be due to changing circumstances in your home country or severe trauma that prevented you from applying sooner. Normally, your attorney will file a legal brief with the court arguing the reasons you are eligible for an exception to the one-year filing requirement.
Firm Resettlement. If you had an opportunity to resettle permanently in another country before arriving in the country where you seek asylum, this may disqualify you. However, there are exceptions, so it is important to tell your lawyer if you lived in any other country.
Criminal Record. If you have a criminal record, you must disclose it and explain how the nature of your offense does not disqualify you from receiving asylum. Some criminal offenses may not bar you from asylum, but you will need strong legal representation. Other criminal offenses may disqualify you from asylum entirely especially if they are “particularly serious.” Usually, your immigration lawyer will discuss your criminal history and argue why you remain eligible despite the criminal issues.

6. Stay Informed of Policy Changes

Immigration laws and asylum policies can change, sometimes drastically. It’s essential to stay informed of any updates to asylum law, which may impact how your case is reviewed. For instance:

Government Policy Shifts. Changes in administration may lead to stricter or more lenient asylum policies.
Court Rulings. Court decisions can also affect the interpretation of asylum laws, particularly on issues like social group membership or political persecution.

Consult with your lawyer regularly to stay updated on any changes that may affect your case.

7. If You Do Not Win Asylum, Don’t Lose Hope

If your asylum case is denied, it is not the end of the road. You have the option to appeal the decision. Appeals are typically made to the Board of Immigration Appeals (BIA), but you must act quickly and file within the given deadlines. In some cases, you may also appeal to a federal court. Many cases are lost in immigration court but win on appeal.

Even if the BIA denies your asylum, you can appeal to a federal appeals circuit court in the district you reside, such as the Ninth Circuit.

During the appeal, your lawyer will argue that the immigration judge or officer made an error in evaluating your case. Additional evidence can sometimes be submitted, but the focus is usually on identifying legal errors or misinterpretations of the facts.

It is also important to note that you may still be eligible for alternative forms of relief in immigration court. When someone is seeking protection in the U.S. but doesn't qualify for asylum, there are alternative forms of relief that may prevent deportation. These alternatives include:

Prosecutorial Discretion (PD) and Dismissal

Prosecutorial discretion refers to the decision made by immigration authorities (such as Immigration and Customs Enforcement, ICE) to not pursue deportation or removal in certain cases. In some instances, ICE may decide to dismiss a case or delay deportation for humanitarian or policy reasons.

Types of Prosecutorial Discretion. This can include actions like dismissing or closing a case, issuing a stay of removal, or granting deferred action.
Reasons for Prosecutorial Discretion. Factors such as family ties in the U.S., long-standing residence, military service, or severe health issues may be considered when granting prosecutorial discretion.

Dismissal through prosecutorial discretion doesn’t provide legal status but allows an individual to remain in the U.S. without the threat of immediate deportation. This decision is usually influenced by broader government priorities, focusing on removing individuals with criminal histories or security threats.

Withholding of Removal

Withholding of removal is a protection under U.S. immigration law that prevents an individual from being deported to a country where they face a real risk of persecution, but it offers more limited protection than asylum. It is an alternative for those who do not qualify for asylum, often because they failed to apply within the required one-year deadline for asylum or were convicted of certain crimes that disqualify them from asylum.

Key differences between asylum and withholding of removal include:

Higher Standard. The individual must prove that it’s "more likely than not" (greater than 50% chance) that they would be persecuted in their home country, which is a higher standard than asylum's "well-founded fear" requirement.
No Path to Permanent Residency. Unlike asylum, withholding of removal does not lead to a green card or citizenship. It only prevents deportation to the country where the applicant fears persecution.
Limited Benefits. People granted withholding of removal can remain in the U.S. but cannot sponsor family members or travel internationally.

Deferral of Removal (Under the Convention Against Torture - CAT)

Deferral of removal is another form of protection that stems from the Convention Against Torture (CAT). Like withholding of removal, it prevents deportation but is granted in specific circumstances where there is a significant likelihood that the applicant will be tortured if returned to their home country.

Torture Requirement. The applicant must show it is "more likely than not" that they will face torture, which is defined as intentional infliction of severe pain or suffering, either physical or mental, by or with the consent of a public official.
Temporary Protection. Deferral of removal does not grant a permanent immigration status. It can be lifted if country conditions improve or if the government changes its priorities.
Applicable to Criminal Convictions. This form of relief is available even to those who have been convicted of serious crimes and are barred from asylum or withholding of removal, provided they can demonstrate that they face the risk of torture in their country of origin.

Conclusion

Winning an asylum case is never easy, but it is achievable if you approach the process with thorough preparation, gather robust evidence, and present your story clearly and consistently. Having legal representation, knowing the law, and preparing meticulously for your interview or court hearing will greatly increase your chances of success.

Each asylum case is unique, and navigating the complexities of immigration law requires patience, persistence, and a willingness to seek professional guidance when needed. By following these guidelines, you will be well on your way to building a strong, compelling asylum case.