New Asylum Regulations Ironed Out

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New Asylum Rules Revise the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

Part I: The Basics

Effective January 5th, 2001, a new rule will apply to all applications for asylum, withholding of removal and applications under the United Nations Convention Against Torture.

The INS' Office of International Affairs has preliminary jurisdiction over most asylum claims filed in person or at a US port of entry.  In addition, the Office is in charge of determining whether there is credible fear that warrants a claim for asylum. Immigration Court will handle applications filed by those already under deportation proceedings in the US, as well as cases filed before April 1, 1997, for those admitted or attempting to gain admission with a visa waiver. Under joint country agreements, a visa waiver is awarded to those citizens of countries from which entry into the USA does not require a visa.

To make this a kinder, gentler process, all asylum officers will receive specialized training in human rights and the areas of law  that pertain to such cases.

Those who are not eligible for removal hearings, including stowaways, members of foreign ship crews, and various other temporary aliens will also be allowed to present their asylum cases in Immigration Court.

Unless they can convince the court that they never received a notice of hearing or had severe extenuating circumstances, those who do not appear for their asylum hearings will automatically be denied. They will however, be entitled to file a motion to reopen within 90 days of the initial date. although this may not intercept a removal proceeding unless a Judge orders otherwise.

Properly executed asylum applications will postpone removal proceedings pending an outcome, however, information in that same application can also be used against the immigrant if the asylum application is denied. As with most government documents, the application is signed under penalty of perjury and carries serious penalties for those who tempt fate with dishonesty. A false statement may lead to permanent ineligibility for asylum.

Those who have a third country where they may be eligible for asylum may not be eligible to apply in the US. The same goes for those who have resided in the States for a year or more without applying for asylum, and for those previously denied. A judge may, at his or her own discretion, review the circumstances and allow exceptions, but this should be a last resort; a distant second to doing it right the first time. Unless an alternative is approved, cases must be handled in the district that has jurisdiction over the applicant in question.

Aside from use for certain government purposes, asylum applications are kept confidential and interviews should be non-adversarial and private.

The State Department will review applications forwarded by the INS and all government parties may rely on material from other credible sources (i.e. conditions in the applicant's home country) in making a determination to approve or deny. Burden of proof rests with the applicant, who must exhaust all means to establish asylum eligibility. Testimony may go a long way, but supporting evidence can be very beneficial.

Those with pending applications are eligible for work authorization within 150 days of filing, or as soon as the asylum application is approved. Travel abroad will require an Advance Parole, which applicants must file for, and rarely may any country from which the applicant is claiming persecution be visited.

Later this Month: Asylum Complications and Denial

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