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Immigration & Naturalization Law

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What Is Humanitarian Protection and How Does It Work?

When men, women, and children are displaced from their homes by violent conflict, natural disaster, or other emergencies, they are forced to try to find safety in another country. U.S. immigration law consists of a well-established set of laws regarding the status of refugee claimants and asylum seekers.

For the most part, you’re considered an asylum seeker if you are leaving one nation to look for “safe haven” in another country. By contrast, you would be considered a refugee for resettlement if you flee from one country, such as Iraq to France, and then seek an eventual safe haven in a third nation.

Humanitarian Protection Eligibility

According to American law, you’re considered a refugee if you are unable or unwilling to return to your home country due to a “well-founded fear of persecution.”

The president and Congress set a cap on the number of refugee admissions annually. There are three primary tiers of consideration. Priority One refugee applicants have a much better chance of an expedited and successful claim than Priority Three refugees.

  • Priority One: Priority One applications are typically referred to American officials by the United Nations High Commissioner for Refugees (UNHCR). This elevation of status is typically due to the threat of continued or compelling persecution facing the applicant. Referrals to Priority One status are also commonly forwarded from humanitarian NGOs and U.S. embassies worldwide.
  • Priority Two: Priority Two applicants are individuals or groups of “special concern” to the U.S. This determination is made by UNHCR, relevant or stakeholder NGOs, the state department, and U.S. Citizen and Immigration Services (USCIS). If you are seeking asylum or refugee status from conflict zones you might fall under this category.
  • Priority Three: Priority Three applicants are generally the relatives or unmarried children of refugees who have already settled in America.

What Is Persecution?

Persecution refers to having a well-founded fear of reprisal because of any of the following:

  • Race
  • Religion
  • Nationality
  • Political opinion
  • Membership in a particular social group

Physical, economic, and emotional threats are examples of persecution. LGBTQ individuals can make a claim for asylum or refugee status if they can successfully tie the alleged persecution they are fleeing to their identity. This status might require sworn statements and affidavits, as well as any other relevant evidence.

Conflict zones where tribal warfare, civil unrest, or excessive crime or violence occurs commonly result in refugees fleeing to other countries. Applicants coming from conflict zones should speak to a representative from UNHCR, and if possible, an immigration attorney. Some attorneys offer immigration assistance for little or no cost.

What Is a Well-Founded Fear?

An immigration officer considers whether the applicant faces a well-founded fear. A well-founded fear “is based on facts that would lead a reasonable person in similar circumstances to fear persecution” in their home country.

The Mogharrabi Test provides a four-point test for establishing well-founded fear.

  • Possession (or imputed possession) of a protected trait
  • Awareness (the persecutor is aware — or could be aware — of the applicant possessing the protected trait)
  • Capability (the persecutor has the means to punish the applicant)
  • Inclination (the persecutor is inclined to punish the applicant)

The burden of proof lies upon the person(s) seeking asylum or refugee status, rather than on the United States. You do not necessarily have to experience persecution in the past. Sometimes, the threat of potential persecution in the future qualifies. Each case is judged on its particular merits, and the officer responsible for approving or denying your claim makes the decision.

Who Is Not Eligible?

Individuals with a significant criminal record or with any history of conducting persecution themselves are typically denied any claims related to asylum or refugee status. Likewise, those seeking asylum or refugee status out of a hope for improved economic opportunity may find their claims denied, as persecution and lack of opportunity are not always the same in the eyes of the law.

How Do People Apply For Asylum or Refugee Status?

Because referrals are a large part of humanitarian protection in the United States, if you’re seeking asylum or refugee status, you should consult your local UNHCR or U.S. Refugee Program office. You’ll be guided through filing form I-589. Refugee status claimants will need Form I-590. The government will also collect biographic or biometric information, as well as taking your fingerprints.

Whether you are already in the U.S. or not, you might also need a financial sponsor, such as a church, NGO, charitable organization, or resident family member.

You’ll also need proof of identity and proof of persecution or of a well-founded fear. An affidavit is often attached to an application for this reason, along with sworn statements from personal contacts and professional contacts.

Finally, applicants and any family members who are applying will need to conduct a face-to-face interview with a USCIS representative.

Is Asylum or Refugee Status Permanent?

Refugee and asylee status is not usually meant to be permanent. After one year, refugees in the U.S. must begin the process of applying for status as a permanent resident and getting their green card. Asylees are not bound by this requirement, but it might be a good idea to do so if you plan on staying in America or becoming an American citizen.

Asylum or refugee status can also be called into question for a variety of factors, such as if the country you are fleeing from is no longer deemed dangerous or prosecutorial, or if you are suspected of fraud.

Can Those Convicted of a Crime Seek Asylum?

While some refugee or asylee claimants may successfully apply despite convictions of a minor crime, serious crimes — or crimes involving persecution — can automatically bar candidates from entry. Participation in terrorist acts, committing serious political or non-political crimes, or simply posing a danger to the U.S. can be reasons to deny humanitarian protection.

Can Those Under Humanitarian Protection Seek Employment in the U.S.?

Refugees and asylees can work in the United States. USCIS provides successful applicants with a Form I-94 with a refugee admission stamp. More paperwork commonly follows (Form I-765, “Application for Employment Authorization“) which will, after some time, result in an Employment Authorization Document (EAD). Before the EAD (work permit) arrives, those under humanitarian protection in the U.S. can provide the I-94 to potential employers.

Can Those Under Humanitarian Protection Bring Their Spouse and Family?

Successful asylees and refugees in the United States can, in fact, apply to bring their husband or wife and children (under 21) — as “derivatives” — to America as well. You’ll need to provide proof of your relationship. The asylee or refugee will receive the same protection, and opportunities, as others under humanitarian protection. You’ll also need to file Form I-730, which is available online via USCIS.

Can Those Under Humanitarian Protection Travel Outside of the U.S.?

Refugees and asylum seekers residing in the U.S. will need to have a Refugee Travel Document, which is valid for one year and which is similar in appearance to an American passport. File Form I-131 from USCIS to begin the application for a Refugee Travel Document if you plan to travel outside the U.S.

One thing to note, however, is that travel back to the country from which you have fled may raise questions about the legitimacy of your status.

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