New York Lawyer's Legal Updates

Asylum: Why A Case Can Be Denied?

Author: USA Asylum Lawyer Alena Shautsova

Asylum: Why A Case Can Be Denied?

If you are reading this article, we are sharing a common interest: to learn why some asylum cases are approved, and some (that look just like the ones that were approved are denied). To an unprepared eye it may truly look like a mystery that someone from a country with a terrible armed conflict, political instability, or practices of FGM may be denied asylum in the US. Afterall, asylum itself sounds like a protection: so why if a person is threatened in their home country or will be exposed to conditions well beyond the acceptable they cannot be afforded his protection?

The answer lies in the fact that asylum can be granted only according to the regulations, and those regulations created by lawyers, judges, humans, are subject to human (judges’, lawyers’, officers’) interpretations. And here, it is extremely important, that you know what (at least approximately) most judges will think about your particular case. Strangely enough, the same set of facts can be interpreted differently and may affect your chances for asylum.

Criminal Prosecution Not Persecution?

At times, the courts state that even if an applicant charged in their home country with a criminal offense, they do not possess fear of future persecution. Here, it is important to present evidence that in the applicant’s case, the criminal prosecution is persecution.

Criminal prosecution may be regarded as prosecution if it is sued by the government not in conformity with International standards. “In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution. “In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.” See here.

What if I have not voiced my opinion yet?

Often, the adjudicators demand proof that an asylum applicant shows that the government/potential persecutor is aware of their views. It helps the adjudicators to determine if an applicant may have fear of future persecution. However, the BIA has noted that an applicant’s fear may be well founded if the persecutor “could” become aware of the applicant’s belief. Matter of Mogharabbi, 19 I&N Dec. 439, 446 (BIA 1987). But in this case, an applicant will have to show that they will voice their opinion once they are returned back to their home country. For example, an applicant has been actively voicing their opinion in the US, or in the past; the applicant has shown with their activism, that they will not remain silent.

Imputed Political Opinion

What if one possesses certain characteristics, or engaged or abstained from engaging in certain actions based on which the government of one’s country may stretch their conclusions about the applicant and impute (think) that one possesses opposition views? In the US, courts have agreed that an imputed political opinion may constitute a basis for asylum. Again, it is a difficult argument to win, but possible. See Pascual v. Mukasey, 514 F 3d 483, 488 (6th Cir. 2007).

Use of Country Conditions Expert

A country conditions expert can be extremely helpful in convincing the court that an applicant will be persecuted if he/she is to be returned to their home country. An expert can address certain points of concern, and usually presents a comprehensive report on general country conditions in your home country. It is especially useful in cases of well founded fear of future persecution.

If you need help with an asylum case, contact us at 917 885 2261 or schedule your appointment here.

22 June 2023
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