New York Lawyer's Legal Updates

Political Asylum in The USA For Belarusian Citizens

Author: Asylum Attorney Alena Shautsova

Asylum applicants are often confused as to what exactly they need to show in court or during the interview to be able to sustain a successful claim. The fact that a person happens to be from a particular country, even if it is well known for violations of human rights, does not by itself guarantee that a person will be granted asylum in the US or anywhere else.

Under 8 U.S.C. § 1101(a)(42)(A), a “refugee” is “any person who is outside any country of such person’s nationality . . . who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” An asylum applicant bears the burden of proving that she has a well-founded fear of future persecution based on one of the enumerated grounds. Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir. 1995). A well-founded fear of future persecution “must be both subjectively genuine and objectively reasonable.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999). An asylum applicant’s credible testimony that he or she genuinely fears persecution suffices to establish the subjective element. Id. The objective element may be established either by the presentation of “credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution,” or through a showing by an asylum applicant that he or she has suffered persecution in the past. Id. A showing of past persecution shifts the burden to the government to prove, by a preponderance of the evidence that conditions in the applicant’s country have changed such that the applicant “no longer has a well-founded fear that he would be persecuted if he were to return.” Id.

As such, an asylum applicant has two main ways of showing that he/she should be afforded protection in the US: a). that he/she suffered past prosecution and/or b). that he/she has a well- founded fear of being persecuted in the future should he/she return to their home country. An asylum application based on a well‐founded fear of future persecution must demonstrate that the petitioner faces a “reasonable possibility of suffering such persecution if he or she were to return to that country,” 8 C.F.R. § 1208.13 (b)(2)(i)(B), and the petitioner is “unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.” 8 C.F.R. § 1208.13(b)(2)(i)(C). A person has a well‐founded fear of persecution if a reasonable person in the same position would fear persecution. Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994). To show a prima facie case for eligibility for asylum, a petitioner must present “sufficient evidence to demonstrate a reasonable likelihood of success on the merits so as to make it worthwhile to develop the issues further at a full evidentiary hearing.” In re A‐N & R‐M‐N, 22 I. & N. Dec. 953, 956 (BIA 1999). A person can win his/her case if can demonstrate that his/her “inclusion in, and identification with, such group of persons such that [her] fear of persecution upon return is reasonable.” See 8 C.F.R. § 1208.13(b)(2)(iii). The recent case law on account of a Belarusian political activist Tatsiana Boika, who demonstrated that Belarus’ country conditions and the fact that she was politically active while in the US, provide a viable asylum claim. Please refer to Asylum Library for the text of the decision. The same true for those Belarusian nationals who practice “unorthodox” religions in Belarus. See recent case of Rusak (Asylum Library).

The bottom line is that due to complexity of the Immigration laws, presenting a viable asylum claim can be as hard as drafting a blueprint for the high-rise building. The facts matter the most, of course, but to know how to present the facts requires skill, advocacy and knowledge.

If you have questions regarding Asylum process in the US, please contact US asylum lawyer ALENA SHAUTSOVA at 917-885-2261.

31 August 2013
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