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The Refugee Act of 1980 provides for refugees and asylees who establish that they are victims of persecution based on race, religion, nationality, membership in a particular social group or political affiliation.

There are some differences between refugee and asylum processes. Unlike asylum, refugee status can only be obtained if you are outside your own country and outside the United States, and if you are unwilling or unable to return because of a well-founded fear of persecution. Your application must be filed either with the nearest INS office outside the U.S. or at a designated U.S. Consulate. The President of the United States in consultation with Congress determines how many refugees may enter the United States each year and from which countries. If you are in the U.S. or at the land border of the U.S. and believe you are victim of persecution, you can apply for asylum. You can file this application even if you are here illegally or if you are in deportation or exclusion proceedings.

Whether applying as a refugee or as an asylee, you would be interviewed in an attempt to determine whether your claim is bona fide and whether your application should be approved.

Your eligibility for refugee or asylee status may be affected if it is alleged that you have been involved in the persecution of other persons, if you have been firmly resettled in another country, if you have been convicted of an especially serious crime, or committed a serious non-political crime prior to coming to the U.S. Under new procedural guidelines applicants for asylum will first be interviewed by a specially trained officer of the Immigration and Naturalization Service. Only after a determination that an applicant has a "non-frivolous" claim will employment authorization be granted. If an application is denied, then an Order to Show Cause starting deportation proceedings is filed. However, the applicant is entitled to renew his or her claim for asylum before the Immigration Judge and appeal any adverse decision to the Board of Immigration Appeal and the courts.

If asylum is granted, then the applicant and his or her immediate family are eligible to apply for permanent resident status the following your.

You may be required to document that the circumstances in your home country have not changed and you are still unwilling or unable to return to the prosecution. Since there is a limited number of visas available, successful applicants often have to wait another period of time before becoming permanent residents.

C.A.T. - Convention Against Torture Claims

THE CONVENTION AGAINST TORTURE PROHIBITS THE INVOLUNTARY RETURN (REFOULEMENT) OF TORTURE VICTIMS AND IS BINDING ON THE UNITED STATES GOVERNMENT

Article 3 of the Convention Against Torture (CAT) prohibits in direct and specific terms the return of individuals to countries where they have reasonable grounds for believing that they would be subjected to torture. This Article provides that:

"No State Party shall expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture."

This clear-cut prohibition of refoulement (return to torture) has been recognized by the INS and by a number of Immigration Judges as legally binding, despite the fact that legislation formally implementing these provisions has yet to be adopted by the Congress, and that administrative regulations based on an implementing statute have not been adopted by the INS.

In a May 14, 1997 Memorandum to Regional and District Counsels and All Headquarters Attorneys, titled Compliance with Article 3 of the Convention Against Torture, the INS Office of General Counsel indicates that the U.S. "has agreed not to 'expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture.'" The Memorandum further indicates that while "there is no statutory provision to implement Article 3, .... [n]evertheless, as a provision in a treaty to which the United States is a party, Article 3 is United States law, equal in force to a federal statute." As a result, "INS has a legal duty to ensure compliance with Article 3 in the cases of aliens it may remove from the United States." (page 2)

An April 27, 1998 Memorandum from the INS Office of International Affairs, Asylum Division, to all Asylum Officers and Asylum Directors provides detailed guidance "to ensure compliance with Article 3 of the Convention Against Torture...."

Another Memorandum from the INS General Counsel to the INS Office of Field Operations, dated April 14, 1998, reaffirms the policy that the standard of non-refoulement of those facing torture is binding on the United States as of November 20, 1994, and grants withholding of deportation on this ground to an asylum seeker from Iraq.

Pursuant to these standards, the INS has accepted for processing a number of CAT Article 3 petitions, has granted permanent withholding in one CAT case, and has approved temporary stays of deportation and the granting of parole in several others.

A number of Immigration Judges, pursuant to this legally binding obligation, have refused to order deportation or removal of individuals coming within the Article 3 protections. For example, on February 28, 1997 Judge John Richardson ruled that a Nigerian who was found to have illegally reentered the U.S. after deportation could not be deported based on the Torture Convention. He found Article 3 "binding on the Immigration Court" to the extent that the Judge could take no action that would violate the standard of non-refoulement, even in the absence of statutory and regulation authority. This would include entering "an order of deportation which directly contravenes the United States' obligations under international law. He cited the "right to be free from official torture" as "fundamental and universal ... deserving of the highest status under international law (Siderman de Blake v. Republic of Argentina, 965 F.2d 599, 616, 9th Cir. 1992). Similarly, Judge James Fujimoto, in the case of Abdoulaye Diakite (File No. A 74 212 940, December 11, 1997) found that a Liberian, even though ordinarily barred from seeking withholding of deportation because of the commission of serious crimes, could be granted this relief under Article 3 of the Convention Against Torture. The Judge ruled that limitations imposed by domestic law, unless adopted subsequent to a treaty obligation and with the specific intent of limiting these obligations, do not supersede treaty requirements, and that Immigration Judges are bound to "comply with the mandate of international law" in making their rulings.

Remember, this is very general information and should not be used to plan your case. Please seek the advice of an attorney who specializes in this area of law.

* Ron Tasoff has been certified as an immigration law specialist by the State Bar of California, Board of Legal Specialization. His law firm, Tasoff and Tasoff, has handled immigration cases for over 50 years. Questions can be answered by Mr. Tasoff at (818) 788-8900, by fax to (818) 788-5900