Sometimes, the evidence you leave out of an asylum case is as important as the evidence you include.
Here, we’ll look at what evidence is best kept out of a case, how to decide whether to submit evidence that has harmful and helpful components, and how to evaluate the risks inherent in excluding unhelpful evidence.
When preparing an asylum case, there is a tendency to include all the evidence you can get your hands on: Identity documents, school and work records, military records, witness letters, medical and police reports, threat letters, country condition information, &tc., &tc. This is understandable, given the REAL ID Act, which requires asylum applicants to submit evidence that is reasonably available. When you do not submit evidence that is expected by the U.S. government, the Act requires that you explain why that evidence is absent. So in general, it is a good idea to submit evidence. But not always.
That’s because some evidence does more harm than good. One obvious piece of harmful evidence is a witness letter that is inconsistent with the asylum applicant’s story. If you say that you lived in a blue house, but your witness says that you lived in a red house, the fact finder is likely to conclude that one of you is lying. Such a letter is best left out, even if it contains some useful information. Better yet, the letter (or the asylum seeker’s affidavit) can be corrected so it is consistent with other evidence in the case.
This brings up a larger point–every piece of evidence you submit in a case should be consistent with every other piece of evidence. One way to ensure consistency is to create an affidavit and then compare each piece of evidence to the affidavit. If all the evidence is consistent with the affidavit, it should all be consistent with each other.
What, then, do you do if you have a useful piece of evidence that is somehow inconsistent with the remainder of your case? An (easy) example of this might be a birth certificate that contains some wrong information, such as an incorrect birth date or location. In that case, we typically submit the birth certificate and in the index of exhibits, which lists and describes all our evidence, we include a footnote explaining the error. We also make sure that the client is aware of the inconsistency, so she can explain it if asked. In this example, the explanation might simply be that the home government made a mistake when they created the birth certificate.
Other situations are less obvious. We recently litigated a case of a Uyghur man who was a citizen of China and who had a temporary residence document for Turkey (Uyghurs are severely persecuted in China and some flee to Turkey). If the Turkish document indicated that our client had permanent status in Turkey, that would likely bar him from asylum in the United States. In our case, the only document we had from Turkey was a copy of the front side of my client’s residency card, which had no expiration date. On the one hand, this document was damaging to our case, since it indicated that my client was a “resident” of Turkey, and this sounds like a permanent status that could bar him from asylum. On the other hand, I felt that we had to submit some evidence of his status in Turkey, since the client lived there for more than five years and it would look bad if we had nothing–it might also cause the judge to assume that we were trying to hide my client’s status in Turkey. In our case, we submitted the residency card along with country condition evidence from Turkey indicating that “residency” was not a permanent status under Turkish law and that Turkey was unsafe for Uyghurs. That evidence, combined with the client’s testimony about his situation in Turkey was enough (just barely) to overcome the judge’s concern about firm resettlement and the case was approved.
Sometimes we see documents that are so inconsistent that they appear fraudulent. In some cases, such documents are actually fraudulent; other times, they are real, but appear fake. Either way, unless there is a very good reason to include such documents (along with an explanation), I do not submit them. The U.S. government is pretty good about discovering fake documents, and so it is not worth the risk of submitting a document that is (or seems be) fraudulent. The likely benefit of such a document is not worth the risk, since submitting a document that the government views as fake is almost guaranteed to lose you the case.
The more cases I do, the more willing I have become to exclude documents that may be damaging. That’s especially true for witness letters, since fact finders usually don’t give those a lot of weight (though my clients are sometimes asked why they failed to get a letter from a particular witness, but those inquires are rarely fatal to the case). In other words, unless a document is crucial to the person’s claim, I will exclude it if I feel it might cause credibility or other problems.
Finally, it is important for asylum seekers to understand that they have the burden of proof in the case. They must convince the Immigration Judge or Asylum Officer that they qualify for asylum. To satisfy that burden, evidence is almost always required. But asylum seekers are not obliged to submit every piece of evidence that they have, and it is wise to consider whether a particular piece of evidence may do more harm to the case than good.
Hi Jason,
Thank you for sharing your knowledge and creating this community, its truly a blessing for those in need!
I would appreciate it if you could share your thoughts on my case!
I entered the US in December 2022 on a B1/b2 visa to visit my family from Germany, where I did my master’s and had a student residency! I changed my status to F1 by enrolling into a PhD program. I was introduced to Christianity by a few friends from playing sports and started going to a church near the place I lived and decided to convert from to Christianity from Islam. I have developed strong relationships with the people at the Church, my paster and the community there. I haven’t been baptized but have decided to get baptized at the end of this month! I know that the penalty of converting from Islam to Christianity is death back home and since I had always been politically active back home ( was arrested one time during a mass protest 10 years ago, and was arrested another time during an religious based ceremony, for which I unfortunately don’t have any past documents as a proof) and also was actively involved in the recent protest against our regime during my student time in Germany, for which I do have clips and movies. I fear that I would be danger if I go back. Even without my current change of situation, I was afraid to go back when I was in Germany because of my activities during the Women-life-Freedom movement in Germany.
I have been doing some research and was preparing my declaration for my potential asylum application and had some questions regarding how to convey my story for my case!
I had an aunt back home who was a very active evangelist and had to flee the country as she was pinned down by the government in 2018. She went to the UK and seemed asylum there, where she freely practices her faith. During the past few months, she has been the one who has helped me with my decision for converting to Christianity.
My aunt insists that I do include in my declaration about past fear and any kind of harm or story that I had from back home! Although I was somehow tortured during my arrest during the religious ceremony, I didn’t have a fear of persecution based on my beliefs as I was not a Christian back then. I also didn’t flee the country and went to Germany in 2019 for academic purposes.
I came to know Jesus and developed faith just a few months ago. So my question is, do I need to focus on the potential future fear of persecution or shall I consider including details about my past political activities as well?! I know that I have to answer some questions regarding my stay in Germany, but I never sought asylum or any permanent residency while I was there! However, I did apply for Self-employment residency, which is also a temporary resident permit, in Germany. I have stated about this in my declaration for my COS application and also told the officer during my tourist visa interview!
From what I have understood, my situation qualifies me to apply out of the one-year time window based on the provided criteria from the USCIS.
But my question is that do you think that my past COS application, coming from a third safe country to the US, would negatively affect my application? If so, what is the best way to strengthen my case?
Thank you so much for taking the time to read this and providing your insights!
Best,
VJ
I am guessing you are from Iran, and if so, the main issue in your asylum case would be whether the conversion was genuine or done for purposes of immigration. So you would want evidence that you are really Christian and that would come from your aunt and people at your church (letters, photos, Baptism document, etc.). Of course, you also need evidence about the danger in Iran, but that should be easy enough to get (including the US State Department reports on Iran). In terms of past harm, I think it deserves a brief mention, but it does not sound like the focus of your case. I would not leave it out, as they will ask you about this at the interview and if you do not include it, it may seem strange to them. The main issues in a case like this are things like the one-year bar and firm resettlement. If you are still in lawful status, that is an exception to the one year bar. Also, if you convert and get Baptized, maybe that could be changed circumstances. I wrote more about this on January 18, 2018. In terms of firm resettlement, you have to prove to them that you did not get a permanent status in Germany, and so you could do that based on your German documents, info on the internet about gaining status in Germany, and/or a letter from a German lawyer explaining your status there. If you are not from Iran, the same issues apply, but it can be more difficult to prove a fear of future harm from other countries, and so you would want to make sure to have sufficient evidence about the danger to converts. Take care, Jason
I asked this question before but idk maybe it didnt post or i forgot to submit it .
Entered usa long time ago 10+ years ago on tourist visa amd expired. Had 2 marriages in the meantime plus an asylum case pending. First marriage was before i filed any benefita and in this marriage i didnt file any i-130 or i-485 or any benefits . Since i didnt have ssn number i dint have proofs of this marriage like rent lease, joint bank statements etc.
Then i divorced in 6 months. It was brief marriage. Then i filed asylum after one year deadline and i got work permit but uscis denied refer my case to immigration court.
My old lawyer told me asylum will be better cuz i qualified for asylum due to change circumstances but asked me if i marry again dont file marriage based i-485 cuz i dont have proofs of genuine marriage from previous marriage and uscis will look at previous marriage even if no benefits filed and deny it due to 204(c) marriage fraud. It was not fraud just we have no proofs due to me being illegal that time without work permit or ssn.
Now i got married again and we have lot of evidence together but never filed any i-130 together yet but shes cheating on me and verbally abusive. And took my passport also. We have separated.
Can at master hearing i switch asylum for cancelation of removal vawa and can it be done. Will the judge also deny it for same reason and ask if previous marriage was genuine. It was genuine but no proofs apart from divorce decree and marriage certificate . I think i can also show hardship to me if im removed back to my country.
I think you should pursue all available options, which sound like asylum, Cancellation (if you have a qualifying relative – a US-citizen or green-card parent, spouse or child who would suffer extreme hardship if you are deported, and if you meet the other requirements), and VAWA Cancellation. I would talk to a lawyer about all these to see about eligibility. I highly doubt the first marriage will be an issue. I do not see how there can be fraud if no immigration papers were ever filed. And maybe you can find someone who knew you at the time who can write a letter, which would be some proof of the marriage. Also, of course, you would want to address the one-year filing bar (I wrote about that on January 18, 2018 and again two weeks ago). Take care, Jason
Hi Jason,
If I receive an interview notice, is it going to be mailed to me or just an online update on my case status? Thank you!
If you have an online USCIS account and you originally filed asylum online, you should get the interview notice online and by mail. Otherwise, you would only get a message indicating that the notice has been mailed, and you will only receive the actual notice letter by mail. Take care, Jason
Hi Jason, hope you’re doing good. Our asylum based green card approved for my whole family, but my 13 year old daughter green card is still pending. Is this a normal thing or should we contact with USCIS?
Thanks
It is common for family members to apply at the same time and get decisions at different times, and so in general, this seems normal. If her case is outside the normal processing times (which you can check at http://www.uscis.gov) you can inquire, but otherwise, there is probably nothing to do, and hopefully, she will have a GC soon. Take care, Jason
Hi Jason
I applied for TPS renewal (Nepal) and my I765 has been pending for the past 5+ months. The 6 months auto extension is ending end of this month. I also saw the USCIS notice that TPS category has been extended to 540 days but it states “The extension begins on the “Card Expires” date on face of their EAD”.
The problem is, we got multiple auto extensions from Federal register so we didnt had to renew the EAD until now with latest date. Now, if I take the USCIS sentence word for word then I dont have a EAD that expired last year and printed on the EAD since I was under auto extension and didnt require to update my EAD card with federal register expiration date. My HR is not agreeing to accept that I got 540 days extension interpreting that the card I have need to have expiration date of 2023 where my EAD has 2020 expiration and used auto extensions. Any thoughts or reference that I can use to convince HR? Else I will be losing my job by end of this month. I tried contacting USCIS but they said they will mail a letter but there is no ETA.
Ugh. I do not know of any references on that point. I do think you have a basis to expedite with USCIS, as you are facing job loss, and severe financial hardship is a criteria to expedite. I wrote about that on January 29, 2020 and listed the different bases to expedite. Maybe if you try USCIS again and explain that you need to expedite because you are facing a financial crisis, that might help. Good luck, Jason
Hi Jason, I filed asylum recently ( few days) and want also apply for TPS (Temporary protection status) , while my asylum is pending, do you think its okay to request TPS? What will be happened once TPS status closed? Do you think I’m legible to continue my asylum case after TPS finished?
What are problems of applying TPS while my asylum case is pending?
I thank you in advance
Hi Jason, I filed asylum recently ( few days) and want also apply for TPS (Temporary protection status) , while my asylum is pending, do you think its okay to request TPS? What will be happened once TPS status closed? Do you think I’m legible to continue my asylum case?
What are problems of applying TPS while my asylum case is pending?
I thank you in advance
It is no problem. I wrote about asylum and TPS on November 29, 2017 if you want more info, but if you have TPS, it may get you a work permit more quickly and also it makes it easier to travel outside the US and return (with Advance Parole). If you have TPS and the Asylum Office denies your case, you will probably not go to court, but the case will be denied and you will remain in lawful TPS status. I say “probably” because the Asylum Offices have not always been consistent about this process, but recently, we received a notice of intent to deny a case where the person had TPS, and it seems like she will not be sent to court if the case is denied (we are still hoping it will be granted). Take care, Jason
Hi Jason,
Will the new announcement (Other Action section) benefit those who want to do AOS from C08 to Employment visas?
https://www.dhs.gov/news/2024/06/17/fact-sheet-dhs-announces-new-process-promote-unity-and-stability-families
Thank you!
The new announcement has no effect on employment-based visas, as it specially applies to marriage cases (and stepchildren). Take care, Jason
Hi,
I want to ask a question. I hear 2 approaches to define well founded fear
“a reasonable person in the context would … be afraid” and “1 in 10 chance”…
So…I am wondering…say a gay person, showing a document that says 10% of gay people in a country are persecuted…does that mean this gay person will easily qualify for asylum, even though he has generally lived his life safely ?
And if the number is 5%…does that mean the gay person will not qualify for asylum ? (unless he shows some individual risk ?). In my opinion, if 5% of gay people are persecuted, that statistics alone for a reasonable person, is fearful enough…and I am a reasonable person…so it seems that I will fit in the first definition and won’t in the second ?
If 5% of planes crashed, I think few people would fly, and so I do not think you need to show that 10% of people are persecuted. There is no way to make such a showing anyway, as no such data exists that I have ever seen. If there is evidence of past persecution or a threat of future harm, or if country conditions are dangerous for your group, that may be enough. Take care, Jason
I mean I obviously agree with you.
But I sometimes wonder how AO/IJ would decide…would AO/IJ really be able to look from the applicants’ perspective ? Does empathy really exist ?
Because I would imagine most AO/IJ lived their full life in a free, safe environment, and never have the experience of being persecuted, in a first world. Most asylum seekers come from third world countries, oppressed long time. They would have experience detecting signs of trouble and impending risks/persecutions…
AO/IJ only learned about concepts like persecution or fear, in their jobs. But asylum seekers experienced what it means to be persecuted and to be fearful probably most of their life…this disparity…and inexperience in persecution and fear…would it cloud the judgment of well-founded fear ?
I do not think it is necessary to have been persecuted to be a good immigration judge; in the same way, it is not necessary to have been a criminal or a victim of crime to serve as a criminal judge. People can do a good job by learning the law and the facts of the case, and by being empathetic. Take care, Jason
Hi Jason,
Thank you for everything you doing for the community I have a question it’s has been 2 since my asylum was granted I that time I was busy with info pass I forget to renew my EAD but now I have a difficulty to renew my ID drivers license I went to DMV they cannot help me because I don’t have a valid EAD please I what should I do, please advise me. Thank you
I do not know much about driver’s licenses, but for my clients, I think they need a valid EAD to get a license. However, if asylum was granted, that is a permanent status and you do not need an EAD to work (see http://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274/70-evidence-of-employment-authorization-for-certain-categories/73-refugees-and-asylees), and so I would think you would not need that for a DL either. Maybe if you can show them your other IDs (passport, old DL and EAD) plus evidence of your asylum grant, and that link I mentioned, it will help. If not, maybe you can ask for a supervisor, as an asylee should be eligible for a license. Take care, Jason
Hi, i have an ead based on pending asylum with usics. I checked my everfiy . It always say case incomplete and never let me self check again. It always show me a failed check from last year. My question is my asylum is pending with uscis. My status also says next step is interview. Im just nervous. Is it that my ead could be revoked. I mean do you ever see ead revoked in your career as an asylum lawyer . If revoked do they send offical letter telling ead is revoked im worried. I know im just paranoid. Im working and i was hired but idk if my employer did e verify.
I am not sure I understand your question, but if you have an EAD and it is valid, and your asylum case is pending, you are fine. The online messages are sometimes inaccurate, and have no real meaning, and so I would not pay much attention to that. I have never seen USCIS revoke an EAD in an asylum case. Take care, Jason
Hello Jason
I asked motion to my case in Baltimore and they moved it to Richmond Adjudication Center. But I am unable to check the status online using https://acis.eoir.justice.gov/en/caseInformation. Do you know any site which help me to confirm my hearing date?
This is a court case? If so, you should be able to find the date for the hearing if you follow the link under Resources called EOIR Case Status. It may be that the case is not yet on the schedule, but hopefully that will happen soon. Take care, Jason
Now able to see my case online. Thank you!!!!
Hi Jason,
I obtained my Green Card through asylum in 2020, and it has been retroactively effective since October 6, 2019. I would appreciate if you could advise me on the date of my eligibility to apply for naturalization. Additionally, I have incurred two speeding infractions – one in Virginia for reckless driving and another for speeding last month. I am seeking guidance on how these incidents may impact the naturalization process. Your professional advice on this matter would be greatly appreciated.
Thanks!
Assuming you meet all other requirements,the soonest you can file is about July 7, 2024 (90 days prior to October 6, 2024). A speeding ticket should have no effect. If the reckless driving is a crime, I doubt it will have much effect, as it is not the type of crime that would block you from naturalizing (i.e., a crime involving moral turpitude or an aggravated felony), but you would need to provide info about that, including the “disposition” (final outcome). Also, there may be different types of reckless driving convictions, and so you should probably have a lawyer take a look just to be safe. Take care, Jason
I got the reckless tickets in 2017 that was before getting my green card. And I paid the fine amount to the court. So even the incident happened before 7 years also will be a problem for applying n400.
Then it should not be an issue, as long as you disclose it and they do not think you are trying to hide it. Take care, Jason
Good day Jason.
Thanks for this article.
Can you please advise what is the average time for USCIS to issue asylum interview decision lately?
Understood, that it can be weeks and can be years based on several reasons.
Just want to see what is the mean average for your practice lately.
The Arlington Asylum Office just had a meeting where they said that the median wait time between an interview and a decision is 55 days, meaning that half the people wait less than 55 days and half wait more than 55 days. I doubt that has much meaning for other asylum offices, as they are all different, and my experience is that my clients – who tend to come from countries that require a more thorough security background check – tend to wait longer than that. Anyway, for what it’s worth, that is what they say. Take care, Jason
Thank you Jason.
So the policy of giving people notice to come back in 2 weeks to receive a decision is gone?
Supposedly that happens sometimes, but I have not seen it since before Covid. Take care, Jason
We should be able to seek compensation from the persecutors and they should be brought to justice…
Like seriously, not only the harm but the extended effect and trauma…
A grant of asylum won’t be able to cure all the trauma and it seems to me that persecutors enjoy broad immunity…
When I think of it…it seems very unfair and not right…shouldn’t something be done about it ?
I guess nobody is willing to speak out against these persecutors or hold them accountable…if even immigration advocates, the most pro-asylum seeker people, can’t denounce these persecutors, who would…
No wonder these persecutors are more and more emboldened…cause they can get away with anything, and won’t receive a lick of criticism. Nobody is interested in holding them accountable.
Hi Jason,
I hope you are doing well. Thank you for your guidance. My asylum case was approved by IJ last week and my wife received the notice of her NIW EB2 approval today. We are moving forward to apply for I-485 for AOS. I was wondering for my eligibility to apply with my wife as I have seen NIW based green card processed faster than Asylum based green card. Thanks
I congratulate you.
But I am eating some sour grapes today 🥺
Hi @CHAMCHAM,
Congratulations!
Would you like to give some information as how long it took to get approved for EB2 NIW the entire process from the start.
I am also exploring the possibility of EB2 NIW.
Thank You
Sadi
If you need it, I did posts about asylum and getting a green card based on employment on August 28, 2018 and September 6, 2018. Take care, Jason
If you entered the US legally and have no other bars, I think you would be eligible to adjust based on the EB2, but I am not completely certain and it would probably be a good idea to double check the specific situation with a lawyer. Also, keep in mind that if you get a GC based on asylum, it will be back-dated one year (that would be true for wife too, if she is an asylee dependent). And so while you may get the GC faster based on EB2, you may be eligible for citizenship more quickly if you get the GC based on asylum. Take care, Jason
Hello Jason, I have a question. I applied for my I-485 based on asylum in 2021 and had my interview last year. It’s been over seven months since the interview, and my case is still pending.
Every time I submit a service request, I’m told my case is being reviewed. I even asked state representatives for help, but they got the same response.
Do congressional requests really help speed up the process, or does USCIS usually not pay much attention to them?
Thanks for your help.
I am not sure whether Congress people help much, but they are free and don’t hurt, so it is worth trying. Also free is the USCIS Ombudsman (there is a link under Resources). That office can sometimes help with a delayed case at USCIS and is worth a try. If all else fails, you can always hire a lawyer to file a mandamus lawsuit, but I would try all the other ideas first. Take care, Jason
Jason,
I want to ask a question.
Say an LGBTI person is infected with HIV. but his country of origin banned marketing of all AIDS medicine. He can only obtain it through dangerous/possibly illegal/difficult/coud be fake pill… importation route through black market…
Do you think this constitutes … persecution or at least a significant harm ? or…would the IJ just say…well, it’s still possible for you to obtain medication…even if there is no aboveboard way to do so …. so it doesn’t count…?
If the government deliberately restricted the drug in order to harm sexual minorities or HIV+ people, you would have a decent argument that it constitutes persecution. Take care, Jason
that’s very good to know.
Of course no govt will give a written admission that “I did this in order to harm”….but…I think it won’t be difficult for me to contradict the foreign govt’s claim…
Hi Jason,
Thank you for everything over the past 8 years. I have an upcoming I-485 interview based on my asylee status with an adjudicator at the field office, and I have no criminal history. Is it normal to have an I-485 interview these days? I know most people don’t need one, so I am very frustrated and nervous. Even though my stories are true, my experiences in my home country were so frightening and nightmarish. I passed my asylum interview with an officer, and I’m afraid they might revoke my asylee status and send me back to my home country, where I would certainly be detained and harmed.
What are the main topics of the I-485 interview? Will we go over my asylum case in detail again, or will it focus primarily on the I-485 questions?
Best regards,
Kevin
Some people get I-485 interviews and others do not. I do not think it is anything to worry about. Maybe double check your I-589 form to make sure it is consistent with the I-485 (addresses, jobs, membership in organizations, etc.). If there are differences, you should be prepared to explain those (or better yet, inform the officer yourself, as it is better to tell them first than to have them ask you). Also, review the asylum case, so you can answer questions about that if asked (probably you will not be asked, but you never know). Most of these interviews are pretty easy – they go over the I-485 and the questions there, and that is about it. Hopefully, that will be you too. I do think it is worthwhile preparing, but I doubt there is much to worry about. Take care, Jason
Thank you, Jason. You are so kind and helpful. All the best
Hi Kevin
When did you apply for ur green card and how long did it take to schedule an appointment and is it soon or years later 🤣
Thanks and good luck
Wishing you Jason sir a very good Sunday morning. Me and my brother we applied for asylum in 2022 and we both have work permit. Our cases are pending with uscis. I have 2 questions. One for me and one for my bro.
1) For me. My asylum case is in california( los angeles asylum office). All my addresses are in california ( dmv, bank uscis etc) but i just applied for my renewal of ead. I temporarily moved to Indianapolis. In . I dont know how long i will live here or if i ll live here permanently .I didnt want to change my asylum office and other bank, dmv etc addresses, asylum offices. So i kept using my cali addresses for i-765 as my home address . But in mailing address i gave indiana address. Will i get my ead renewal card in indiana address or California address. And also while the renewal process is in process i move. somewhere else can i update the mailing address again.
2) Second my bro also has an ead based on pending asylum. He got married to a us citizen. But she doesnt work . She only worked a little bit last year like for $10 K. Can he use his income in i-864 affidavit of support. My bro is a truck driver and from last 2 years he has a stable income and he makes well above the 125% income. But the problem is truck companies give 1099 not w2 cuz they consider truckers as independent contractors. Can he use his 1099 income of this year tax returns for i-130&i-485 combo filing .
Thanks sir
1 – They should send all mail to the mailing address. It is better to not move while the case is pending, as documents my get lost in the mail when you change your address – that is not very common, but it is still safer to keep the same address through the whole process if possible. 2 – Your brother should be able to use his income (see the instructions for form I-864A about using the intended immigrant’s income). I don’t like to do that, as I feel like it is easy enough to find a joint sponsor – a friend or family member who has a GC or is a US citizen and can service as a joint sponsor, and submit a form I-864 (the petitioner/spouse must also submit a form I-864 even if she has insufficient income). Take care, Jason
I have 2 questions this time…
Now…I know that persecution is an extreme concept…but…I recently learned that…there is a “child standard”…so basically, because minor could suffer more harm when the harm is objectively equal to that inflicted to an adult (which won’t constitute persecution)…they could have an easier time establishing persecution ? Most of my harm was experienced when I was a minor…so does that mean…I get to enjoy the lessened burden…the lowered threshold in establishing persecution ?
second…I cannot recall many details of my past harm…it has been many years…it definitely has happened…I could also inadvertently chose to forget those traumatic memories due to PTSD…So what should I do now ? I only have a skeleton of my past harm…I cannot seem to fill in many details…I will obtain a PTSD diagnosis…but…will this really overcome the obstacle ? I am worried that the AO/IJ will just find me not credible by not supplying details…
I wish I could have documented every instance of my harm…I really do…
1 – I think you could certainly argue that the harm you suffered was worse since you were a child. Also, as an analogy, women who suffer circumcision at a young age often claim a continuing and life long harm (mental and physical) from that process. Maybe something similar could apply here. 2 – I think a diagnosis would help, as that shows how the harm affects you now. Also, evidence of the harm itself in the form of letters from people who know about it, police or medical reports from the time, and any other evidence about contemporaneous harm. Take care, Jason
Jason, what is strange is that the word persecution is mentioned in the INA when defining who is a refugee, but the word persecution is not defined in the INA. That allows for the courts, and USCIS, to form their own opinion on what constitutes persecution.
Some courts and cases, however, have attempted to define persecution:
1) “Persecution can definitely include harms that aren’t physical, or immediate threats to one’s life or freedom.” (See INS v. Stevic, 467 U.S. 407 (1984); Surita v. INS, 95 F.3d 814 (9th Cir. 1996.).
2) “Persecution covers a range of acts and harms,” and “[t]he determination that actions rise to the level of persecution is very fact-dependent.” (See Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000).)
3) “…actions must rise above the level of mere ‘harassment’ to constitute persecution.” (See Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000).)
4) “… the experience “must rise above unpleasantness, harassment and even basic suffering.” (See Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000).)
From the definitions and explanations above, we can conclude that persecution must be more than just harassment, minor inconveniences, and sufferings. It does not necessarily have to be physical or pose an immediate threat to your life or freedom. Generally, persecution involves severe actions such as rape, torture, imprisonment, unlawful detention, slavery, economic discrimination, denial of travel documents, and restriction of movement.
Bear in mind that, for the purpose of asylum and establishing past or future persecution, the persecution must typically be on account of one of the protected categories.
It is my belief that, unless you are facing removal or cannot easily establish that you belong to a category that could be persecuted in your country of origin (COP) based on your race, religion, political opinion, etc., the asylum applicant need not dwell on what constitutes persecution or whether or not they were persecuted. Even though the asylum applicant could win asylum based on past and future persecution, it is crucial to understand that the asylum applicant is not the fact-finder when it comes to determining what constitutes persecution or whether persecution occurred.
The job of the asylum applicant and their lawyer is to present the strongest case possible. One of the most important responsibilities of the asylum applicant is to prove that they belong to a group, which asylum and refugee laws recognize as protected, that you claim is being, or could be, persecuted in your COP. Once you have established your “membership” in that group or category, you must demonstrate, even if the harm/persecution inflicted is by private citizens, that there is a pattern of persecution or harm against this group in your COP, which is usually widespread, unavoidable, or uncontrollable.
Additionally, you should show that moving to another part of the country would not eliminate the threat, harm, or persecution, and you should demonstrate that your government is unwilling, complicit, or unable to protect you.
Put simply, unless you have a very difficult case, stressing about what constitutes persecution is needless. If you are deserving of asylum and have followed all the procedures correctly, including filing your asylum application on time, you need not focus on proving that you will be persecuted or have been persecuted. Even though the system and its workers can sometimes be unfair and unreasonable, if you are a bona fide refugee or asylee, doing everything right should suffice.
I agree that if you face some type of harm on account of a protected ground, many fact finders will grant asylum on that basis. Nevertheless, we do try to demonstrate that the harm suffered/feared rises to the level of “persecution,” whatever that means. We emphasize how bad it is and the physical and mental effects, and any treatment or long term harm. There was a good law review article analyzing what different courts have found to be persecution and the short answer is that they have all sorts of definitions that are often inconsistent. I wrote about that article on August 18, 2015. Take care, Jason
Great points, Jason
Hi Jason,
Is it necessary to apply again for an employment authorization card along side an application for green card, even though one still has an active employment authorization based on asylum that it’s expiration is 5 years later?
The person in issue had a pending asylum application before marrying a citizen and now set to file for a Green card
If the asylum is still pending, the work permit is still active and there is no issue. If the asylum was withdrawn, the work permit is technically not active and the person may want to apply for a new car based on the pending adjustment of status. In real life, even if the asylum is withdrawn, they can probably still use the card; it’s just that I suppose they could be accused of using an invalid card, which might cause problems if we get a new presidential administration that is more harsh towards immigrants. Take care, Jason
Thank you very much for the excellent article. It reminded me of my asylum case, which was approved in 2023 after a decade of waiting and three interviews. My application, submitted in 2013, faced significant delays due to mismanagement and oversight by my lawyer. He neglected crucial details in my letter, arguing that its unpolished English would lend authenticity. In reality, he was unwilling to spend even 10 minutes correcting errors. I did not hire a cheap lawyer though; he was one of the prominent attorneys in my area.
When I arrived in the U.S., my English was limited, and I did my best to describe my situation. However, After educating myself through the Asylumist, I later identified critical mistakes in my case, including the exact same error you described above of mischaracterizing a temporary resident card in a third country as permanent. In addition to many other TRIG flags That were not in reality real TRIG issues, But again They were mischaracterized bu my unawareness of the asylum system. These errors could have been avoided, saving years of waiting.
Thank you for your articles and for your dedication to your work. Your efforts have been life-saving for me and my family. We are deeply grateful.
I have never been a fan of the unpolished-English-is-more-authentic approach, as the whole point of a translator is to allow people to articulate their story in English as they would in their native language. And so for me, the translated version of the story is more authentic, since it allows the person to say what they need to say. Anyway, I am glad the case finally worked out, and thank you for the kind words. Take care, Jason
Hi Jason,
In September 2023, I filed my AOS based on my marriage to a U.S. citizen following the dismissal of my prior asylum case with IC. While waiting for my AOS and green card application approval, USCIS sent me a combo card that includes both EAD and advance parole.
I am originally from Ethiopia and currently have no intention of traveling back home. However, I want to travel to Europe using my Ethiopian passport with a visa. Am I good to go with my combo card and passport to travel out of and back to the U.S. without any issues?
You should be fine to travel with the passport and return to the US as long as the combo card is still valid. However, most Ethiopian cases involve fear of the government, and so you should be prepared to explain at your adjustment interview why you used a passport from a country that wants to harm you. The explanation may be that you did not go to Ethiopia and did not seek their assistance from any embassy, that you are a low-level activist and you did not think the government would be aware of your using the passport, that you went to a country where the Ethiopian government could not harm you, or some other reason. I doubt you will be asked about this, but you should have an answer ready just in case. I did a post on May 25, 2022 about using our passport after you win asylum, and many of the same ideas there would apply in your case. Take care, Jason
Am I the only one who feels that way…
Like seriously, AG Garland is a well-respected, moderate legal scholar…and even him…is held in contempt…by this partisan congressional vote…
Should we really give in to their request in shutting down the border ? I feel that these republicans are insatiable…AG Garland is in my opinion, a very non-partisan person, a person of integrity…
I feel that, let’s say Biden complies with this them…okay, and then he wins by 270-268, eking out a narrow victory…Republicans…knowing that this immigration topic will work, will continue to deploy this tactic in 2026, 2028…they will demand more, like cancel affirmative asylum as well…or cancel the whole asylum program…
I think that many of them have basically thrown out their ideology (which I never liked anyway) and are more interested in stoking resentment and indignation (not to mention, self promotion among elected officials and media people). However, I do think there are many who are still old school Republicans and may yet be persuaded on policy. Take care, Jason
I filed for asylum since 2016, I checked my case status online and I was told the asylum case has been closed.
Did anyone experience this?
I am yet to get my interview.
Thank you as you respond.
…are you referred to the immigration court ?
No I was not referred to Immigration Court.
The asylum system is a mess, and so anything is possible, but unless they notified you or you missed an appointment, the case should not close. You can email your local asylum office (and maybe include a copy of the online message you saw) to ask about the status of your case. You can find their email if you follow the link under Resources called Asylum Office Locator. Take care, Jason
This is the response I received:
Application was closed. We closed your application and we informed you of the reason when we notified you in writing.
I also applied for FAFSA for my graduate program. This was the response I received:
Your citizenship status(item 14) has been confirmed by the U.S Department of Homeland Security and you meet the citizenship requirements for federal student aid.”
I have never been eligible for FAFSA. This will be the first time. Please what does this mean?
Thanks you for your response.
Could it be possible that you are granted asylum ?
Is it possible without an interview? I am seriously confused. I need some advice.
What if I Fail to Appear for My Affirmative Asylum Interview?
If USCIS does not receive a written explanation for your failure to appear within 45 days after the date of the scheduled interview, and you do not have legal status in the United States, your case will be referred to the immigration court. If you have legal status in the United States, your case will be administratively closed. See 8 CFR § 208.10. The asylum office director has discretion to reschedule your interview if you provide a reasonable explanation for your failure to appear. If you establish an exceptional circumstance that explains your failure to appear or can show that USCIS did not properly notify you of the interview, USCIS will reschedule your interview.
If you fail to appear at the interview, it may affect your eligibility to apply for work authorization. You may file a Form I-765, Application for Employment Authorization, based on your pending asylum application 150 days after you filed your asylum application. You are not eligible to receive an Employment Authorization Document (EAD) until your asylum application has been pending for at least another 30 days, for a total of 180 days. 8 CFR 208.7(a)(1). However, if you applied for asylum on or after Jan. 4, 1995, you will be ineligible for employment authorization if you fail to appear for an interview, unless your failure to appear is excused. See 8 CFR § 208.7(a)(4).
That does not seem to be the case here, as he would have gotten a notice about the failure to appear and possibly a notice to appear in court. Take care, Jason
I do not know what this means and I think you should email the asylum office to ask. If you have not received a written notice by mail, you can ask for that again. I am also not sure what it means about your citizenship status. Some people are US citizens due to their parent or grandparent. If USCIS thinks you are a US citizen, that would be a reason to close your asylum case. Maybe that is worth checking into, but I would think you would know that before USCIS would know it, as you would normally have had to take some action to claim your US citizenship. This message does not indicate that asylum was granted; otherwise, it would say that. If you can’t get an answer by email, you can file a Freedom of Information Act request to get you file (follow the link under Resources called FOIA USCIS for more info), or maybe hire a lawyer to assist you. Take care, Jason
I have emailed the asylum office. I have been paying out of pocket for all my education in the States. I am surprised that I applied for FAFSA for my graduate program and I was deemed eligible. This will be the first time. It is very strange to me.
I will update you once I hear from the Asylum office. I did not receive any mail about any interview.
Each time I checked my status online it read “Next stage is interview”
This is the first time I am seeing “application closed”.
Are they now granting asylum without interview?
My EAD is due for renewal. I also plan to renew it soon and watch out for the response.
I will update this group what I receive.
Thank you Jason for all you do for people like me.
You gave me so much hope when I was in a dark tunnel.
Remain blessed.
I do not think the case was granted, as an interview is required. Also, your status would now be asylum granted. They do a lot of dumb things and so maybe they made a mistake and closed the case. Hopefully, you can get a response from them by email to clarify. Take care, Jason
I actually do hear from my community that…some people’s asylum case is administratively closed…they are not referred to court and apparently not granted asylum (I think probably denied) without an interview….
@Labelle, are you in lawful status ?
Hi Jason, thanks to you and all community for your hard work of supporting the ones who’s in need. I have a question, I hope you can help with that. I have a scenario where my case is referred to IJ from AO but I also have approved I-140 EB3 where I’m waiting for the interview abroad cause visa is not yet current but very close to it. Will my approved EB3 petition play any role for IJ if I reach IJ before EB3 interview? Like can I ask to consider this as well apart from my asylum case? And can it give any positive effect to my asylum case for IJ? Please let me know. Thanks again.
In general, once a person is in court, they cannot adjust status based on an EB3 because only someone who is in lawful status can adjust (and when you are in court, by definition, the government thinks you are not in lawful status). There may be exceptions to this rule, and maybe you could dismiss the case and then adjust based on EB3, but you would want to have a lawyer look at the specifics of your case to see if that might be possible. Maybe you can try the asylum case and if you are eligible, ask for voluntary departure as an alternative – that allows you to leave the US without a deport order so that you can (hopefully) return later based on the EB3. Voluntary departure does not prevent you from appealing any denial, and so if you have that, and the EB3 becomes current, you can then leave (or if you have already appealed, close the appeal case and then leave), do the consular processing, and return here with a green card. None of this is easy and it will all depend on the specifics of your situation, but it is possible and you would want to have a lawyer look at this to see how best to proceed. I wrote more about some of these issues on August 28, 2018 and September 6, 2018, and maybe those posts would give you some ideas. Take care, Jason
I have some info that my persecutors are calling USCIS and EOIR to say that everything I said in my asylum application is fraudulent…What should I do…
You would need to document that and talk to a lawyer for help, as there are many possibilities and you need to take action to protect yourself. Take care, Jason
Hello Mr Jason, i have asylum pending with uscis affirmative. My issue is i filed asylum after 6,5 years in usa. I already got work permit now after filing asylum. Its been pending since 1.5 years. In the declaration of asylum, i didnt fully explain why im filing asylum late. I did give brief description of past persecution when i was in my home country around a decade ago but only wrote i didnt file it due to stress and mental trauma. I filed by myself. Now a lawyer told me to hire a lawyer and alsp amend your application by sending a new declaration. Can new declaration be done . In this new declaration i want to tell why i filed asylum late in detail not just due to stress plus also
There are bew circumstances happening in my country which can be grounds for asylum but i havent included that in my asylum application. Can i also add new circumstances in my country in new updated declaration .
Lastly in your experience did u see any asylum case granted by uscis or immigration court ever due to one year deadline
Also can PD be granted to me incase asylum cant be granted so i can renew work permit indefinitely qnd live here indefinitely
You can include a new (or a supplemental) declaration to discuss the late filing. Make sure it is consistent with your prior filing. You can also include new evidence and country conditions documents. However, I would not file that until the interview is scheduled, as there may be additional changes in the future. If there is a new basis to claim asylum (a new and different fear of persecution), you may want to file that now, as it could potentially be a way to overcome the one year bar. I am working on an article about that exact issue, and I will try to post it in the next couple weeks. Also, I wrote in general about the one-year bar and how to overcome it on January 18, 2018. Take care, Jason
Sir since you are talking about new asylum claim.does new asylum application beed to be filed for that or just a new declaration and amend already filed i-589 . Will this have effect on work permit. I already have ead from pending asylum with uscis . I might have a new asylum claim . Do i need to file new asylum or just amend and send declaration to i-589 already filed
If there is a new basis for asylum, you could file a new updated form, and maybe that would be the safer approach and that way, the new form will be in the case record. In the case we did where there was a new basis for asylum, we did not file a new form. We just filed updates to the existing form. That case was in court, where things are more flexible, and while it should work at the asylum office, filing a new form with the new reasons for asylum might be better (though the officer will use that to update the original form – they seem to only rely on the original form at the interview, no matter how many updates there are, and they will not use the new form). Take care, Jason
Hi Jason,
I have few questions. So my mom was recently granted asylum(march) based on a family case but all of us (her kids) were above age 21 so we had to apply separately. We filed on the same day in 2016 and no one has interviews except for my mother. What do you think in this case. Is there any chance that my mom can do anything for us as we are present in the us? Or can she apply green card for us after she gets her green card?
If you were under 21 at the time she filed for asylum, and you are currently unmarried, she can file a form I-730 for you (I wrote about that on January 13, 2020). Otherwise, I do not know what she can do. Once has a GC, she can file for an unmarried adult child and when she is a US citizen, she can file for a married adult child, but those processes take a very long time and would probably require you to leave the US. If she won her case, she can include a letter and a copy of her approval with your (and your siblings’) cases, and that would hopefully make the case more likely to be granted. Take care, Jason
Hello Jason,
I hope you are doing well.
I have a very interesting question to know your opinion about it.
Recently the country of my citizenship has announced that people who have left to seek asylum in other countries will not get the passports and their existing passports and national ID cards will be cancelled too. I know this is stupid and has no logic behind it … they say the countries do not share the information on the people seeking asylum and this is security risk(BS).
Can this work in my favour if I inform this to the asylum office the situation I am in. It’s been more then a year since I was interviewed and mailed them several times about the status and get the same answer that is pending decision review.
Thank you
@sameer
You’re so funny! Me myself cannot believe what you saying as it doesn’t make sense so you wanna USCIS officer believe that? Then we wonder why many folks get their asylum denied! Lots of you guys have wrong ideas about how the asylum system goes.
For your information it’s all around the news and an official directive by country Government.
Its better if you do not respond to the people’s question because you do not have any legal background or education to address anything or neither you are any professional in asylum
or legal field.
This blog is run by Jason who is an expert in Asylum for decades and known for his expertise in this field.
We visit this blog for Jason’s expert opinion and advise not for any immature rude and judgmental person.
So please no one needs your opinion when Jason is here ….
Adam, the only thing you and Asylum officers should believe is your asylum claim and 10 seconds interview.
I think that it is very rare for confidentiality to be breached in an asylum case in the US. I cannot say it has ever happened, as I’ve seen it a few times, but it is rare. In terms of your case, if you have any evidence about this, such as a news article, you can submit that. You might also check the US State Department Country report or other human rights reports, as those sometimes specifically describe how a country persecutes returned asylum seekers. You can submit that evidence to the asylum office (I would scan and email it) and tell them that there is new evidence in the case, and ask again about a decision. You can find their email if you follow the link under Resources called Asylum Office Locator. Take care, Jason
Thank you Jason!
Your legal perspective, opinion and advise is always celebrated!
Good luck everyone and never give-up…unfortunately everyone has their own different journey and it can be 8 months or 10 years…if you can do something(call,email and etc.) do it, don’t rely on anyone but yourself…Lawyers are very busy and they don’t have time to scroll through millions of google pages, but you do, so try to find some info if you can and help your lawyer, you guys are working together as a team!!
So here is my timeline…
-April 2015 , applied before 1 year, Arlington VA.
-2018 case moved to Boston
-2019 case moved to NYC
-December 2019 interview in NYC(Bethesda)…
2hr interview, 0(not a joke) questions asked about my case, 0 information known about my country…officer was very rude and wouldn’t let me answer any questions by interrupting with new questions and was trying to convince me that if you can pay for your flight ticket, you are doing good.
-December 2019 referral to court….
-January 2020 1st Master with a new assigned judge without Individual hearing calendar…waaaaat????
-March 2020 2nd Master , IH for 2022
-2020-2022 covid, problems, new lawyer, new spending…judge disappeared from my schedule, but date was the same.
-2022 IH NYC new judge, 4hr hearing, No decision.Background checks are not done. 6months requested by DHS(summer 2022)
-2022 Summer, cancelled hearing.
-2022 Winter after contacting Imm. Judge , DHS said that background check is not done and they need 6 more months.
-2023 6 months later, DHS said that background checks are not done and they need 6 more months.
-2023 6 months later judge has been transferred and they rescheduled my hearing for another 7 months no judge assigned.
-2024 request for PD to DHS to complete my checks, no answers, no judge assigned.
-April 2024, judge has been assigned, background checks are not done, DHS is ignoring lawyers.
-June 2024 1 week before the hearing, DHS answered that they have completed our PD request and checks, everything is good.
-June 2024 a different judge has granted the case…..
So 2 and 1/2 years for decision in court after my hearing…i’ve seen some people are here with the same problem in different courts, hopefully they are doing good!
This is ridiculous and took almost 10 years….it always could’ve been better, but it could’ve been worse too.
Stay positive and focus on bigger picture, even though sometimes it’s very hard !
Hello jason. I got married in April 2019. My Green card was approved in September 2022. However, since I did not enter the country legally, the asylum case was still ongoing. It was also approved in April 2023. But I received the card on May 30, 2024. dated May 2023. It says As6 on it. Is it possible to change the category of this card to marriage? If this is not possible, when will I fill out the form for citizenship? Thank you in advance for your answers.
AS6 is a category of GC based on asylum. It is not possible to change that, or at least I know of no way to do that. Even if it were possible, I doubt it would save time, as it will take a year or two to get a new GC based on marriage. The GC you have was back-dated to April 2023, and so the soonest you can file for US citizenship is about January 2028, assuming you meet all other requirements (in other words, 5 years from the date on the card minus 90 days). I wrote about asylees and citizenship on December 2, 2020. Take care, Jason
Thank you for sharing. This case sounds familiar. Congratulations and best of luck in the USA! Take care, Jason
Congratulations, Finally!
It took me 8 years to get to GC.
I find it difficult to complain when I read about people waiting for interview for close to a decade.
I congratulate you…
But I am eating some sour grapes today…😫
Really good post!!! I’m a lawyer who became an AO. I had an asylum applicant present a student ID that had an incorrect date of birth, along with dates of enrollment that conflicted with the I-589. It looked incredibly fake. When asked why it was submitted, she said to prove she was a student. When I asked the attorney to explain, they said it was to establish membership in a student PSG (which was a superfluous last ditch argument made in the brief that wouldn’t have worked anyway.) It was sloppy lawyering and could have cost the applicant her claim. I was secretly angry at the attorney on the applicant’s behalf because her political opinion and women viewed as property claims were strong. I would have gladly granted the case based on either but couldn’t ignore the fake ID. I wrote it up as a grant but it took me twice as long to finish the case. Most AOs wouldn’t have bothered and just referred it to the judge.
Thank you for this – it is always interesting to hear the AO perspective. I imagine there is a fair bit of poor lawyering, but I also think that with experience, we become more able to identify evidence that is unhelpful or fake, and more confident to advise the client that it would be better to leave it out. Take care, Jason
just curious…
Biff? That sounds about right…