Chapter 13 Getting a Green Card as an Asylee or Refugee

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 13 Getting a Green Card as an Asylee or Refugee

A. Do You Qualify as a Refugee or an Asylee?

1. Persecution or Well-Founded Fear of Persecution
2. Evidence Showing Persecution
3. No Firm Resettlement in Another Country and Unavailability of Safe Haven Elsewhere
4. No Record of Crimes or Persecuting Others
5. No Improvement of Circumstances in Your Home Country
6. One-Year Time Limit for Asylum Application
7. Asylum (and Related Remedies) as a Defense to Deportation
8. Numerical Limits on Refugees
9. Alternate Refugee Entrance as a Parolee
10. Bringing Your Spouse and Children

B. How to Apply for Refugee Status

1. Submitting an Appeal When Refugee Status Is Denied
2. Entering the U.S. After Refugee Status Is Granted

C. How to Apply for Asylum

1. Step One: Preparing and Submitting Your Asylum Application
2. Step Two: Attending Your Asylum Interview
3. If Your Asylum Application Is Approved
4. If Your Asylum Application Is Denied

D. How to Get a Green Card as a Refugee or an Asylee

1. Step One: Preparing Your Adjustment of Status Application
2. Step Two: Attending Your Adjustment of Status Interview

For some immigrants, getting out of their home country and finding safe haven in a country like the United States is literally a matter of life and death. The U.S. immigration laws offer help to such people, although the door is not as open as you might wish. This chapter covers the process for gaining admission to the U.S. as a refugee, and the process for persons already in the U.S. (or at the border) to seek asylum and the right to stay in the United States. Refugees and persons granted asylum (and their immediate family) can apply for a green card to gain all the rights of permanent residence in the U.S., including eventual citizenship.

Unfortunately, the law and procedures surrounding asylum are in flux. In the Trump administration's final days, it adopted major rule changes. Among other things, these raised the bar on what's considered "persecution," said that opposition to a non-state actor such as a terrorist, gang, or guerrilla group will no longer be a basis for political-opinion-based asylum, and gave immigration judges power to end an asylum hearing if they think the case is hopeless. Some say the new regulations basically destroy asylum as a remedy. However, court challenges have limited these changes significantly, and the Biden administration is likely working to rewrite them. Keep checking the Nolo website for updates.

SEE AN EXPERT

Do you need a lawyer? Yes! This chapter will give you an outline of how to apply for refugee or asylee status. However, given the risks you'll face if your application is denied, and that preparing an asylum application is more like writing a book than filling out a form, it's worth trying to get additional help. An experienced lawyer can show you how to highlight the important parts of your story in a way that turns your case into a winner. Within the U.S., several organizations offer free or low-cost help to refugees and asylees. Check with your local legal aid clinic or charitable organization.

CAUTION

Any inadmissible person can be denied U.S. entry or status. If you have ever committed a serious crime, been involved in a terrorist group, lied on an immigration application, lied to an immigration officer, or suffered one of a few specific physical or mental illnesses, you might be inadmissible. That can cause a denial of your initial refugee or asylum application, and is even more likely to cause a denial of your later application for permanent resident status. However, most grounds of inadmissibility can be waived (forgiven) for refugees and asylees, except those grounds concerning the commission of serious crimes, persecution of others, or participation in subversive or terrorist activities such that you are considered a possible threat to U.S. security. (Unlike the normal waiver of inadmissibility, this waiver does not require you to have a family member who is already a permanent resident or U.S. citizen.)

A. Do You Qualify as a Refugee or an Asylee?

The legal grounds for refugee and asylee status are almost identical. To qualify, you must have experienced persecution in the past or have a well-founded fear of persecution in the future in your home country. Persecution is defined generally as a serious threat to your life or freedom. It needs to be a nationwide threat—you won't be thought to have a well-founded fear of persecution if you could avoid the problem simply by relocating to another part of the country. The fact that you are suffering economically is not considered a reason for granting refugee or asylee status. Nor is it enough if someone has a grudge against you or has committed crimes against you for random or personal reasons.

The main difference between asylees and refugees is where they start their application process. People physically outside the U.S. must apply for refugee status. Even if you have been designated as a refugee by the United Nations High Commissioner for Refugees (UNHCR), you will still need to apply separately to the U.S. government, which will make its own decision about whether to accept you. The U.S. government approves only a limited number of refugees for admission each year. (The number is set by the U.S. president.) Refugees must ordinarily be outside their country of origin, but the U.S. president can authorize USCIS to process some individuals in their home countries.

You cannot apply for asylum until you have reached U.S. soil. Neither asylees nor refugees need financial sponsors to be granted refugee or asylee status. There is no annual limit on the number of people granted asylum.

CAUTION

If you file an asylum application that USCIS decides is frivolous (has no basis), you will be permanently ineligible for any benefits under U.S. immigration law. That means that you will never be given any U.S. visa or green card, even if you were to marry a U.S. citizen, get a U.S. job offer, or the like. Don't worry that your application will be deemed frivolous if it is denied—USCIS will find your application frivolous only if you had no business even considering asylum as an option.

Beyond these differences, the qualifying requirements for refugees and asylees are the same. A grant of refugee status or asylum allows the person to stay in the U.S. until it's safe to return to the home country. If, after a year, conditions are no safer, both refugees and asylees can apply for a U.S. green card (permanent residence).

CAUTION

Avoid leaving the United States after submitting your asylum application. If you absolutely must travel before getting a decision on it, apply for advanced permission to return to the U.S. on USCIS Form I-131. Whatever you do, do not go back to the country from which you are claiming a fear of persecution, and avoid using your home country passport to travel.

1. Persecution or Well-Founded Fear of Persecution

To establish eligibility for asylee or refugee status, you must prove you are either the victim of past persecution or you fear future persecution. In the case of past persecution, you must prove that you were persecuted in your home country or last country of residence. The persecution must have been based on at least one of five grounds: your race, religion, nationality, political opinion, or membership in a particular social group.

Proving this connection between the persecution and one of these five grounds is one of the most difficult parts of an application for asylee or refugee status—and it got more difficult in 2005, when the REAL ID Act added a requirement that one of the five grounds was or will be a "central reason" for your persecution.

Although the law does not specifically list types of persecution, it does specify that refugees and asylees can include people who have undergone or fear a "coercive population control program" (such as forced abortion or sterilization—this was directed primarily at mainland China).

Persecution may also in some cases be based on your gender, including cultural practices such as female genital cutting or forced marriage. Domestic violence, honor killing, and trafficking (sexual or labor) have at times been recognized as a basis for asylee status, particularly in cases where the police and government compound the problem by failing to protect the victim or prosecute the perpetrators and where the victim was prevented from leaving the abusive situation. In June of 2018, U.S. Attorney General Jeff Sessions reversed years of immigration rulings and legal precedent to declare that immigrants fleeing domestic violence or gang-related violence in their home countries are in most cases ineligible for asylum. (Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).) But this ruling was vacated in 2021 by Attorney General Merrick Garland, returning the law to the status quo. (Matter of A-B-III, 28 I&N Dec. 307 (AG 2021)). For more on these developing areas of the law, see the website of the Center for Gender & Refugee Studies, based at U.C. Hastings College of the Law, at https://cgrs.uchastings.edu.

The persecution doesn't have to come from your country's government or other authorities. Persecution by groups that the government is unable or unwilling to control, such as guerrillas, warring tribes, or organized vigilantes is also recognized. Again, however, the persecution must have some political or social basis—a member of a criminal network who comes after you just because you haven't paid him off is not necessarily persecuting you on a basis recognized by refugee law.

If you have not actually suffered persecution in the past, you can still qualify for asylum or refugee status if you have a genuine fear of future persecution in your home country or last country of residence. For example, if you were the secretary of a student dissident group, and undercover agents sent you death threats, or killed the treasurer and president of your group, you could probably show a...