Asylum

People fleeing persecution in their home countries may be eligible to apply for asylum in the United States, as well as two related forms of relief from removal: withholding of removal and protection under the Convention Against Torture. Many immigrants in detention apply for these forms of relief but are unrepresented by counsel, seriously impeding their ability to win their cases.

Applicants for asylum must establish that they have suffered persecution in the past in their county of nationality, and/or have a “well-founded” fear of persecution in the future.  The persecutor must either be from the government, or someone that government is unwilling or unable to control. One central reason for the persecution must be the applicant’s race, religion, nationality, political opinion, or membership in a particular social group. Asylum applicants must generally file for asylum within one year of arrival in the United States.

The asylum process for detainees includes filing an asylum application and detailed documentation and evidence to support the claim with the immigration court. An immigration judge will conduct a hearing to determine if the applicant merits asylum. Asylum hearings generally last several hours and include detailed testimony from the applicant.


Practice Guides

Matter of A-B- Considerations

Immigrant Legal Resource Center

A practice advisory summarizing the Attorney General's decision, Matter of A-B-, and offering strategies for handling asylum claims, especially those involving domestic violence or gangs, in light of that decision.

Practice Guides

Withholding-Only Toolkit

Pennsylvania Immigration Resource Center and Penn State Law

A hands-on, practical guide to representing clients in withholding of removal and Convention Against Torture claims.

Practice Guides

Asylum in the United States

American Immigration Council

This fact sheet describes the asylum system in the United States, including how asylum is defined, eligibility requirements, and the application process.

Articles

Asylum Law Updates on Particular Social Groups

American Immigration Lawyers Association

In this September 2018 article, three asylum law experts discuss recent jurisprudence on particular social groups in asylum cases, and provide suggestions and guidance on how best to frame social group arguments.

Articles

Asylum, Withholding of Removal, and Protection Under the Convention Against Torture

American Immigration Lawyers Association

A comprehensive and detailed overview of asylum, withholding of removal, and protection under the Convention Against Torture.

Articles

Keeping Them Safe: Preparing an Asylum Trial from Start to Finish

American Immigration Lawyers Association

An overview of the different aspects of putting together an asylum case, including offering witness testimony, exhibits, and trial strategy.

Webinars

Trial Prep in Immigration Court: Direct and Cross Examination

American Immigration Lawyers Association

In this podcast expert removal defense practitioners Rekha Sharma-Crawford, Andrea Saenz, and Rebecca Sanchez-Roig discuss how to prepare your client and witnesses for direct and cross examination in removal proceedings, and how to handle issues that arise during testimony.

Webinars

Video: Nuts and Bolts of Preparing an Asylum Case

Bayou Asylum Project

In this video, the Bayou Asylum Project explains how to prepare your client’s application for asylum and how to win your asylum case before the Asylum Office (not applicable to cases in immigration court) and before the Immigration Judge.

Webinars

Documenting Detained Asylum Cases

Immigration Justice Campaign

This webinar provides practical guidance on drafting applicant affidavits and gathering supporting evidence for detained asylum cases.

Webinars

Video: Asylum Law

Bayou Asylum Project

This presentation provides an overview of asylum law and different grounds for asylum, including membership in a particular social group. The following topics are also covered: the definition of a refugee, the difference between past persecution and fear of future persecution, the “nexus” element of asylum claims, the definition of a persecutor, statutory bars, the burden of proof, and other types of fear-based relief from removal (withholding and relief under the Convention Against Torture).

Case Law

Guidance for Processing Reasonable Fear, Credible Fear, Asylum, and Refugee Claims in Accordance with Matter of A-B-

USCIS

This July 11, 2018 policy memo lays out guidance for USCIS officers for determining, in light of Matter of A-B-, whether an applicant is or might be eligible for asylum or refugee status. The guidance addresses credible and reasonable fear interviews as well as asylum and refugee applications. Practitioners representing asylum seekers in credible and reasonable fear interviews will need to be familiar with this guidance, which attempts to narrow asylum eligibility, especially for those who fear harm by non-governmental persecutors.

Case Law

Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)

Matter of Acosta is the seminal case in modern asylum law, laying out the basic standards by which asylum is adjudicated and setting forth the first factor required to demonstrate eligibility for asylum based on membership in a particular social group: immutability.

Practice Guides

Getting Off the Assembly Line: Overcoming Immigration Court Obstacles in Individual Cases

Appleseed

The Guide provides an overview of immigration court proceedings, as well as specific sections on working with clients in detention, obtaining client documents from the government, pre-hearing communications with the Department of Homeland Security (DHS), dealing with interpretation and videoconferencing challenges and reporting immigration judge and DHS attorney misconduct. The Guide also provides several template and sample documents to assist attorneys in these cases.

Webinars

Webinar on Family Separation and Detention

Immigration Justice Campaign

Thousands of immigrant families have been torn apart at the border in the past few weeks. Listen to this webinar to learn about the immigration detention system in the United States and the latest developments on family separation, the new Executive Order on family detention, and other critical issues impacting immigrants at the border, as well as how the Justice Campaign is mobilizing volunteers to help combat the acute need for representation in immigration detention centers.

Sample Filings

Sample Asylum Brief

University of Wisconsin Law School Immigrant Justice Clinic

A sample asylum brief. The claim involves a political dissident in Cuba who was persecuted on account of his political opinion.

Sample Filings

Sample Pre-hearing Brief in Political-Opinion-Based Asylum Case

This is a sample brief that may need to be filed in advance of the merits or individual hearing in order to provide the court with factual and legal argumentation in support of your client’s claim.

Sample Filings

Case File, Part 1, Charging Document, and How a Case Begins

These are the initial documents filed in any case of defensive asylum, where a person is detained at the border and placed in removal proceedings after demonstrating a credible fear of return. These include the Notice of Custody Determination (I-286), the Warrant for Arrest of Alien (I-200), the Notice to Appear, and Notice to EOIR: Alien Address.

Sample Filings

Case File, Part 2, Hearing Notices

These are examples of hearing notices filed in a case, as well as a letter notifying the IJ of a mistake in scheduling.

Sample Filings

Case File, Part 3: Transcript of Master Calendar Hearings

These are transcripts of all the master calendar hearings held in “Maria’s” case. 

Sample Filings

Case File, Part 4: Full Evidence Packet in Support of "Maria's" Request for Asylum

This is the full submission packet that “Maria’s” attorneys submitted in support of her case. Note that the Form I-589 (asylum application) appears at the front of the packet, followed by biographical evidence, then evidence supporting her credibility and the facts in her affidavits, followed by evidence of country conditions.

Sample Filings

Case File, Part 5: Transcript of Merits Hearing

This is the transcript of the merits or individual hearing at which “Maria” sought asylum in front of the immigration judge, including direct examination and cross-examination. As shown in the next document, the Immigration Judge found “Maria’s” testimony to be credible.

Sample Filings

Case File, Part 6: Sample Immigration Judge Decision

This is a copy of the Immigration Judge’s decision denying “Maria” asylum.

Sample Filings

Case File, Part 7: Sample Evidence Filed in Support of BIA Appeal

This is a copy of all the documents filed in “Maria’s” appeal to the Board of Immigration Appeals, including both sides’ briefs and the ultimate decision. Please note that “Maria” further appealed to the circuit court of appeals. Although that decision is not included here for privacy purposes, it was meritorious and “Maria” received asylum after all.

Case Law

Matter of M-E-V-G-, 26 I&N Dec. 277 (BIA 2014)

Matter of M-E-V-G- & its companion case Matter of W-G-R- lay out the current BIA standards for establishing two of the three factors required to state a claim for asylum on account of membership in a particular social group: “Social Distinction” and “Social Particularity.”

Case Law

Hernandez-Avalos v. Lynch, 784 F. 3d 944 (4th Cir. 2015)

Hernandez-Avalos v. Lynch is one of the best circuit court cases for individuals who fled persecution from groups like the MS-13 gang because the gang was targeting a member of their family for recruitment. Significantly, however, the law may vary dramatically from circuit to circuit in immigration cases, so use this one helpful appellate opinion as a starting point for your research in your particular jurisdiction.

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Guided Learning

If you are new to this area, we suggest the following training sequence to learn about representing detained immigrants in their asylum applications.


1. Asylum in the United States
This fact sheet describes the asylum system in the United States, including how asylum is defined, eligibility requirements, and the application process.

2. Video: Asylum Law
This presentation provides an overview of asylum law and different grounds for asylum.

3. Video: Nuts and Bolts of Preparing an Asylum Case
In this video, the Bayou Asylum Project explains how to prepare your client’s application for asylum and how to win your asylum case.

4. Asylum, Withholding of Removal, and Protection Under the Convention Against Torture
A comprehensive and detailed overview of asylum, withholding of removal, and protection under the Convention Against Torture.