The class began with the lecturer showing us the I-589 form, which is the application for asylum and withholding of removal. The asylum seeker must fill in details of how he entered the United States. Firstly, he must state whether he was allowed to be in the US awaiting the consideration of his asylum status or whether he or she entered without inspection. The applicant is also required to fill in information about his family, spouse, and children since in a case where he gets asylum his family can join him. Notably, when checking the boxes on why one is seeking asylum it is important to check all the applicable boxes. The reason why one should be careful while checking the boxes in the application form is that should one forget to check a certain box it becomes difficult to argue it before the immigration officials. Further, omitting information and filling it in later injures the credibility of the applicant.
The burden of proof while seeking asylum is on the applicant. The applicant has to show why their government is unable to protect them regarding what happens to them in the past. However, it is always very difficult for the applicant to prove that he was going to get hurt in his country. No country can sign an affidavit stating that it wanted to hurt its citizen. Therefore, it always the word of the asylum seeker against that of the prosecutor. One of the ways to prove the likelihood of future persecution is to bring evidence of past persecution. Therefore, the burden shifts on the government to prove that the circumstances leading to the persecution have changed. Sometimes regardless of strong evidence showing the possibility of persecution should the applicant get removed from the US the judges may deny the application.
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For instance, in the lecturer’s instruction notes hypothetical scenario B painted some situations where the applicant is likely to face persecution. The lecturer cautioned that no matter how convincing the facts are there is no guarantee they will secure asylum. Importantly, some situations do not establish a well-founded fear of persecution. The situations include; personal disputes, blood feuds, financial disagreements, criminal sanctions, and victims of crimes. We then went to look into situations that may lead to granting of asylum as follows;
- Political Opinion
Across the world the are people getting persecuted for holding a specific political opinion. However, other people get persecuted for not holding a clear political opinion. For instance, in civil war some people may not support the government nor do they support the rebel forces. The Matter of Acosta is a clear illustration of the position above. Acosta was a national of El Salvador, who never stated openly whether he supported the government or the guerillas. Acosta belonged to a taxi company that hated to take a position since they could have compromised their business. Unfortunately, Acosta and his associates got persecuted by unknown people for the failure to declare their allegiance. Notably, to show establish persecution based on political opinion one must show that he holds a particular opinion. Secondly, the prosecutor must be convinced that the person holds a political opinion. And lastly that the person faces persecution because of his political opinion.
Ways to prove Persecutors Motivation
Persecutors’ motivation can get proved through direct or in alternative circumstantial evidence. Sometimes persecution is informed by mixed motives therefore to prove it, circumstantial evidence is essential. For instance, in the Matter of Gafoor v INS. The applicant was a Fiji national and a policeman of Indian descent. In the course of his duties, he arrested a person who was raping a thirteen-year-old girl. On taking the person to the station he got informed that he was a high-ranking official in the Fiji government. Shortly after the man that Gafoor had arrested was released from custody. Consequently, Gafoor became a target of persecution and racist attacks. Notably, Fiji Indians are subject to persecution in Fiji. Therefore, Gafoor came to seek asylum in the US to escape persecution. The circumstantial evidence was that the arrest he had made led to the racist attacks that almost led to his death. Ultimately, Gafoor was granted asylum.
We then looked at the Real ID Act of 2005. The Act departed from the position in Gafoor v INS holding that protectable ground was or will be at least one central reason for persecuting the applicant. The leading case in the Real ID Act is the Parussimova v Mukasey. The applicant was a Russian national who lived in Kazakhstan. She was a subject of persecution because of nationality and also because she worked with an American company. Notably, her persecutors assaulted called her dirty pig, and almost raped her. In another incident, they attacked while she was walking with her cousin. She was fortunate enough to escape but they beat her cousin till he went into a coma. However, Parussimova was not granted asylum since the court held that she was not attacked on account of a protected ground.
Lastly, when dealing with asylum cases it is necessary to hold the confidentiality of the applicants. In the Board of Immigration Appeals, the names are abbreviated to disguise the identity of the individuals involved. Notably, some cases are very sensitive, for instance, the one involving apostasy when it comes to the laws of Iran since the individual is likely to get killed should they be found out. Unfortunately, the court of Appeals still uses full names despite efforts to have them use abbreviations