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Establishing asylum eligibility

INA §208.13 Establishing asylum eligibility See INA §208.13 (a) Burden of proof. The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b)(1)(B) of the Act does not relieve the alien of the additional burden of establishing eligibility for asylum. (b) Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. (1) Past persecution. An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant’s country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(1)(i) of this section. If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded. (i) Discretionary referral or denial. Except as provided in paragraph (b)(1)(iii) of this section, an asylum officer shall, in the exercise of his or her discretion, refer or deny, or an immigration judge, in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution if any of the following is found by a preponderance of the evidence:

General

Introduction Page to test this. General glossary of terms background information Immigrant Visas Family-Based Visa Petitions Who is eligible? Process? Bona Fide Marriage Employment-Based Visa Petitions Diversity Visa Lottery Non-Immigrant Visas Visitor Student Crewman J Visa R Visa TN Visa O visa H1b Visa H2b Visa Special Visas Special Imm Juvenile VAWA U Visa Asylum Establishing Eligibility for Asylum

Asylum

Types of Asylum Legal Authorities Alternatives to Asylum INA §208.13, Establishing Eligibility Types of Asylum Affirmative Asylum When a noncitizen applies for asylum before they are in removal proceedings Defensive Asylum When a non-citizen is already in removal proceedings when they apply for asylum. Legal Authorities Statutes Immigration and Nationality Act (INA) INA §§ 101(a)(42)(A), 208(b)(1) Title 8 of the U.S. Code Regulations Title 8 of the Code of Federal Regulations (8 C.F.R.) 8 C.F.R. § 1208.13 Board of Immigration Appeals (BIA or the Board) precedent decisions, Attorney General (AG) precedent decisions, Federal court decisions, and Supreme Court decisions. Alternatives to Asylum   ASYLUM WITHHOLDING CAT PROTECTION Type of Harm Persecution Future threat to life or freedom Torture Likelihood of Harm Reasonable possibility. A 10% chance can be sufficient More likely than not. > 50% More likely than not. > 50% Nexus Requires Yes—protected ground must be one central reason for the harm. Yes—harm must be based on a protected ground. No nexus required Who Inflicts Harm The government or A non-government actor the government is unable or unwilling to control. The government or A non-government actor the government is unable or unwilling to control. A public official or person acting in an official capacity or any person acting at the instigation of or with the consent or acquiescence of a public official For more on Withholding of Removal or the Convention Against Torture see those pages. INA §208.13 Establishing asylum eligibility See INA §208.13 (a) Burden of proof. The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b)(1)(B) of the Act does not relieve the alien of the additional burden of establishing eligibility for asylum. (b) Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution. (1) Past persecution. An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant’s country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(1)(i) of this section. If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded. (i) Discretionary referral or denial. Except as provided in paragraph (b)(1)(iii) of this section, an asylum officer shall, in the exercise of his or her discretion, refer or deny, or an immigration judge, in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution if any of the following is found by a preponderance of the evidence:

Family-Based Visas

Family Based Immigration A foreign citizen seeking to live permanently in the United States requires an immigrant visa (IV). To be eligible to apply for an IV, a foreign citizen must be sponsored by an immediate relative who is at least 21 years of age and is either a U.S. citizen or U.S. Lawful Permanent Resident (that is, a green-card holder). Immediate Relative v. Family Preference There are two types of family-based immigrant visas: Immediate Relative – these visas are based on a close family relationship with a U.S. citizen, such as a spouse, child or parent. The number of immigrants in these categories is not limited each fiscal year. Family Preference – these visas are for specific, more distant, family relationships with a U.S. citizen and some specified relationships with a Lawful Permanent Resident (LPR). The number of immigrants in these categories is limited each fiscal year. US Citizen Petitioner Keep in mind that U.S. citizens can file an immigrant visa petition for their: Spouse Son or daughter Parent Brother or sister Permanent Resident Petitioner U.S. Lawful Permanent Residents can only file an immigrant visa petition for their: Spouse Unmarried son or daughter Family Unification Family unification is an important principle governing U.S. immigration policy. The family-based immigration system allows U.S. citizens and LPRs to bring certain family members to the United States. Family-based immigrants are admitted either as immediate relatives of U.S. citizens or through the family preference system. An unlimited number of visas are available every year for the immediate relatives of U.S. citizens. Prospective immigrants in this category must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. Immediate relatives are: spouses of U.S. citizens; unmarried minor children of U.S. citizens (under 21 years old); and parents of U.S. citizens (petitioner must be at least 21 years old to petition for a parent). A limited number of visas are available every year under the family preference system. Prospective immigrants in the family preference system must meet standard eligibility criteria, and petitioners must meet certain age and financial requirements. The family preference system includes: adult children (married and unmarried) and brothers and sisters of U.S. citizens (petitioner must be at least 21 years old to petition for a sibling); and spouses and unmarried children (minor and adult) of LPRs. In order to balance the overall number of immigrants arriving based on family relationships, Congress established a complicated system for calculating the available number of family preference visas for any given year. The number is determined by starting with 480,000 (the maximum number in principle allocated for all family-based immigrants) and then subtracting the number of immediate relative visas issued during the previous year and the number of aliens “paroled” into the United States during the previous year. Any unused employment preference immigrant numbers from the preceding year are then added to this total to establish the number of visas that are available for allocation through the family preference system. However, by law, the number of family-based visas allocated through the preference system may not be lower than 226,000. The number of immediate relatives often exceeds 250,000 in a given year and triggers the 226,000 minimum for preference visas. As a result, the total number of family-based visas often exceeds 480,000. In Fiscal Year (FY) 2019, family-based immigrants comprised 68.8 percent of all new LPRs in the United States.

Fillings Fees

USCIS FILING FEES For the most up-to-date information make sure to check the comprehensive list of fees by viewing, Fee Schedule, Form G-1055. USCIS Frequently Asked Questions About Filing Fees Webpage Form G-1055, Fee Schedule 07/31/2024 04:27 PM EDT Edition Date: 07/31/24. You can find the edition date at the bottom of the page of Form G-1055, Fee Schedule. USCIS FEE SCHEDULE – Form G-1055 updated July 31, 2024 g-1055.pdf HOW TO WRITE CHECK How to Write Your Check Personal checks must be preprinted with your name and your bank’s name. Your address and phone number must be preprinted, typed, or written in ink. !https://www.uscis.gov/sites/default/files/images/article-green-card/FeeRule_CheckImage_Update_May2024.jpg Write the date you are completing the check. Use the U.S. style of month/day/year. (Example: Jan. 4, 2017, or 1/4/17, but not 4/1/17 or 4 JAN 2017.) On the “Pay to the Order of” line, write “U.S. Department of Homeland Security” (not “USDHS” or “DHS”). Use numerals to show the exact dollar amount of the fee for the service you are requesting. In the example, the amount is “$760.00.” Spell out the exact dollar amount of the fee and write the “cents” portion of the amount as a fraction over 100. In this example, the amount is “Seven hundred sixty and 00/100.” Write a brief description of the purpose of your payment. In this example, it is “N-400 application.” Include the applicant’s name on the memo line if it is not on the check itself (for example, if you are paying the fee for your child). Sign the check in ink using your legal name. If your check is not dated within the previous 365 days, we will reject the filing. PAYING BY CREDIT CARD Pay with a Credit or Debit Card If paying by credit or debit card, you must pay each filing fee separately for each application, petition, or request you submit. You may pay filing and any other applicable fees with a credit or debit card issued by a U.S. bank if you are filing: An application, petition, or request with a USCIS lockbox; or An application, petition, or request with the USCIS service centers. There is no additional cost if you pay by credit or debit card. We cannot accept a credit or debit card issued by a foreign bank. Acceptable Credit or Debit Cards You may use Visa, MasterCard, American Express, Discover, and prepaid cards from the same card networks. Make sure the card’s credit limit can cover the fee. We will reject your application, petition, or request if the card is declined, and we will not attempt to process your credit card payment a second time. We do not support payment by gift cards. How to Pay with a Card When Filing by Mail To pay with a card, follow these two steps: Complete and sign Form G-1450, Authorization for Credit Card Transactions (PDF, 261.57 KB). Place the form on top of your application, petition, or request when you file it. When filing Form G-1450 with a Lockbox or Service Center, you may split the payment for one form across multiple credit, debit, or prepaid cards that add up the correct total. Complete one Form G-1450 for each card. However, you may use only one Form G-1450 when requesting emergency advance parole from a USCIS field Office. In all cases, the credit, debit, or prepaid card must be from a financial institution located in the United States. If we accept your filing, we will charge your card for the proper amount and destroy your Form G-1450 to protect your card information. (We will destroy it even if we reject your filing and do not process your payment.) You will see a charge from USCIS on your credit card statement. There is a daily transaction limit for credit cards of $24,999.99 per credit card per day set by the Department of the Treasury. We allow an exemption to this limit of up to $99,999.99 for H-1B registrations and petitions submitted online using one credit card. Security We use the U.S. Department of the Treasury’s Pay.gov Trusted Collections Service to process your credit card payment. Trusted Collections Service is a web-based application that allows government agencies to process debit or credit card payments. You cannot pay the fee directly to Pay.gov. The Department of the Treasury ensures that Pay.gov is Payment Card Industry Data Security Standard compliant. This security standard is a set of requirements designed to ensure all companies processing, storing, or transmitting credit card information maintain a secure environment. For your security, we will destroy your Form G-1450 after processing it, regardless of whether we accept or reject your application, petition, or request. Third-Party Payments Anyone authorized to use a credit card may pay for your application, petition, or request. The cardholder must complete Form G-1450, sign it, and give it to you to submit with your filing. Declined Credit Cards If a credit card is declined, we will not attempt to process the credit card payment again. We will reject your application, petition, or request for lack of payment. Rejection Notices If we reject your filing, we will send you a notice explaining why we rejected it. If you file a corrected application, petition, or request, and wish to pay again by credit card, you will need to include a new Form G-1450. IF YOU FILE ONLINE If you file your form online, the system will guide you through the process of paying your fees with a credit, debit, or prepaid card. Bank account withdrawals are also available when paying online. Once you are ready to submit your form, the system will automatically direct you to the secure Department of the Treasury site, pay.gov, to pay your fees online. We only use pay.gov to process fees. Always check the website address before you pay. Beware of scam websites and scammers who may pretend to be a USCIS website. IF YOU FILE BY MAIL If you mail your form to a USCIS Lockbox facility, you may pay your fees with a debit, credit, or prepaid card. To do so, follow these steps: Complete and sign Form G-1450, Authorization for Credit Card Transactions. Place … Read more

Glossery

Acronyms AAO The Administrative Appeals Office Under authority that the Secretary of Homeland Security has delegated to USCIS, the AAO exercises appellate jurisdiction over approximately 50 different immigration case types filed with USCIS offices, as well as certain U.S. Immigration and Customs Enforcement (ICE) determinations. Not every type of denied immigration benefit request may be appealed, and some appeals fall under the jurisdiction of the Board of Immigration Appeals (BIA), part of the U.S. Department of Justice. ACC Assistant Chief Counsel Government attorneys that represent the Department of Homeland Security, ICE at EOIR removal proceedings. A Number A File “A” Number or “A” File is short for alien number or alien file. Every foreign national inside of the United States who has had contact with USCIS, ICE, or CBP will be issued an identifying A number, which will be used by the government as their file number and is how one can track their case or find information about their immigration matters. AF Aggravated felony AOS Adjustment of Status Changing status from a nonimmigrant or no status to that of legal resident. This is the process by which a non-citizen obtains a green card when they are already in the United States. AP Advance parole travel document BIA Board of Immigration Appeals CBP Customs and Border Enforcement A government agency created as part of the Department of Homeland Security Act in 2003. It replaced the legacy INS. CBP is primarily focused on border security and customs inspections at port of entry (like airports) as the name suggests. CBP does operate internally within the United States sometimes in states that are nowhere near any international borders. CBP is a sub agency of DHS. CAT Convention Against Torture Article three if the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment is last resort form of a relief for a person who fears they will be in danger if they return to their home country. If the person is unable to obtain Asylum or Withholding of Removal, CAT will not confer any immigration benefit but the U.S. Government will not deport a person to their country of nationality if that person would be in danger there. This not discretionary and it cannot be denied to an alien with criminal convictions. The agency that handles immigration appeals from the EOIR Immigration Court. CIMT Crime involving moral turpitude DACA Deferred Action for Childhood Arrivals Deferred Action for Childhood Arrivals, a program launched in 2012. For more information, go to the Deferred Action for Childhood Arrivals 2017 Announcement page. DED Deferred Enforced Departure (see glossary of terms for more info) DHS Department of Homeland Security The largest government agency in the United States, DHS is massive with an annual budget of hundreds of billions of dollars. It was created in response to the 9/11 terrorist attacks and came into existence in 2003. It includes ICE, CBP, and USCIS, among other agencies that will be less important for the purposes of this wiki. DOJ Department of Justice EAD Employment Authorization Document A document to authorizes a person to legally take employment in the United States, commonly referred to as a work permit. EOIR Executive Office of Immigration Review The immigration court. EWI Entry Without Inspection When a person crosses the border at location not so designated by the attorney general as a port of entry, and enters the United States without being formally inspected by immigration officials or without having a valid visa or travel document. ESTA Electronic System for Travel Authorization FOIA Freedom of Information Act ICE Immigration & Customs Enforcement ICE is the enforcement branch of DHS. It is the agency that apprehends and prosecutes non-citizens accused of violating United States immigration law. ICE officers are who we contact when a person is apprehended by immigration. They handle the initial arrest and detention of non-citizens and the enforcement of the removal of non-citizens. ICE attorneys represent DHS in removal proceedings. IJ Immigration Judge INA Immigration and Nationality Act LPR Legal Permanent Resident A legal permanent resident is a foreign national who obtained an immigrant visa and has been granted residency in the U.S. allowing them to permanently reside in the United States. Commonly referred to as a “green card” NTA Notice to Appear The NTA is the document that initiates removal proceedings. ICE will serve the noncitizen with the NTA which will contain the factual allegations and charges against them and provide a date, time, and location, for them to appear in Immigration Court. ICE then files that NTA with the Court and removal proceedings are commenced. NOID Notice of Intent to Deny NOIR Notice of Intent to Revoke PD Prosecutorial discretion The legal authority of DHS/ICE to choose whether or not to take action against an individual for committing an offense, in the removal context to pursue their removal from the United States. PSG Particular Social Group Asylum can be granted to a refugee who has been or fears they will be persecuted on the basis of their political beliefs, religion, nationality, race, or particular social group. PSG is a sort of catch-all category for all other basis’s for which a person can be granted asylum. RFE Request for Evidence ROP Record of Proceedings SIJS Special Immigrant Juvenile Status SIJS stands for “special immigrant juvenile status.” Special immigrant juvenile status is an immigrant visa program that provides a path to legal permanent residency to minors (under 21 and unmarried in NY and most other states) who have been abandoned, neglected, or abused by ONE or both of their parents and reunification with that parent is no longer possible because of said abandonment, neglect, or abuse TPS Temporary Protective Status USC United States Citizen USCIS US Citizenship & Immigration Services USCIS is the branch of DHS that deals with the granting of immigration benefits. USCIS is not concerned with the enforcement of laws or removal of non-citizens from the USCIS (unless they are violent criminals, terrorists, or individuals … Read more