Understanding the Role of an Asylum Lawyer


An asylum lawyer will evaluate your case and provide legal guidance. They will also represent you during your interviews and hearings.

An asylum is a form of protection granted to non-citizens who can show past persecution or a well-founded fear of future persecution based on their race, religion, nationality, political opinion, or membership in a social group.

The Asylum Process

A reasonable asylum lawyer takes the time to thoroughly interview a client to ensure they can articulate a legal theory for the case. Moreover, suppose the person is applying for affirmative asylum. In that case, they must provide country condition evidence and an affidavit describing a well-founded fear of future persecution or torture based on race, religion, political opinion, nationality, or membership in a social group.

This can be difficult because many clients are traumatized and may be reticent to discuss their alleged underlying motivations. Additionally, many LGBTQ/H clients face cultural barriers that make it hard to be open and honest with their attorneys or immigration officers. For example, they often erroneously believe that their sexual orientation, gender identity, or HIV status is private information that should not be shared with the government. A good asylum lawyer helps to break down these barriers and foster a positive, mutually respectful relationship with the client.

The Asylum Interview

An asylum interview allows an applicant to tell their story to an officer. The AO will ask questions about the specific events in your country of origin that led to your decision to flee and will try to determine whether you meet the legal definition of a refugee – which includes past persecution based on race, religion, nationality, political opinion, or membership in a social group.

This can be difficult, as many details of what happened may be upsetting to remember. You must be truthful and detailed in your answers. It is not uncommon for the AO to seem skeptical or unfriendly during the interview, as it is a part of their job to evaluate your credibility.

Having an attorney present during the asylum interview is always a good idea. They can help you manage your expectations by preparing you for the kinds of probing questions that the AO is likely to ask, and they can ensure that the essential facts are told during the interview, which lasts about an hour on average.

The Asylum Hearing

The asylum process is partly complicated because it is under the purview of two different agencies. The first agency is USCIS, part of the Department of Homeland Security, and the second is EOIR, part of the Justice Department.

If a person is found to have a credible fear of persecution or torture, they are referred to immigration court for a hearing with an immigration judge. At this hearing, the judge will decide whether or not to grant asylum or another form of relief, such as withholding of removal or a Convention Against Torture (CAT) benefit.

At the end of the merits hearing, the judge will ask if you want to reserve the right to appeal the decision. Your attorney must advise you of this so you avoid inadvertently agreeing to it. Immigration court proceedings are open to the public unless the respondent requests that the case be closed.

The Asylum Decision

The decision to apply for asylum is severe and should only be made after carefully considering the stringent requirements and available alternatives. An experienced attorney can help you determine whether or not you meet the very narrow criteria for asylum.

Preparing an affirmative or defensive asylum case can be time-consuming and emotionally draining. An attorney must work closely with the client to draft detailed affidavits and gather country condition evidence. This can involve discussing painful events from the past and sometimes requires interviewing witnesses in other countries.

A successful asylum claim depends on establishing past persecution and the fear of future persecution based on race, religion, nationality, membership in a PSG, or political opinion. Asylum adjudicators consider a country’s laws and punishment when evaluating fear of future persecution. For example, a recent Ninth Circuit decision in In re Kasinga held that the past persecution of a gay man by police officers in Mexico did not qualify as asylum eligibility because private consensual same-sex activity is not considered a protected ground of asylum.

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