Virginia Asylum Lawyer

Asylum is a way for individuals who are in the United States to remain here and eventually apply for legal permanent residence if they can prove that they will be harmed or persecuted by an entity that their home country’s government cannot or will not protect them against. Anyone seeking asylum status in Virginia should consult with an asylum lawyer who can help them determine whether or not they are eligible for it.

Necessary Persecution for Asylum

An individual who is applying for asylum needs to prove that he or she either has been persecuted in the past or has a well-founded fear of future persecution. The key is not just that someone is going to be persecuted, but that that persecution is going to take place on account of the applicant’s:

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

In order to qualify for asylum, an individual has to prove that they fall into one of these five categories, and the USCIS will conduct a thorough screening process. The individual also has to prove that the persecution is going to occur or has occurred as a direct result of their membership in that group. They have to prove a nexus between their membership in the group and the persecution. An asylum attorney in Virginia can be instrumental in this process

Eligibility for Asylum in Virginia

Anyone who falls into the above categories can apply for asylum, but there are some disqualifying factors. A Virginia asylum lawyer will be aware of these possible factors and know how to address them. First of all, a criminal record can make a person ineligible for asylum. Also, it can be difficult to apply for asylum if a person has been physically present in the United States for more than a year. In some cases, they are able to apply if they have been physically present for longer than that, but it’s difficult. An individual has to prove either that there were extraordinary circumstances that contributed to their delay in filing or that there has been a change in the conditions of their home country that has created a new reason for them to fear return after they have arrived in the United States.

If, for instance, someone has been present in the United States for five years, but there has been a change in the political administration in their home country that is going to result in them being placed in danger when they return, then they can argue that the one-year clock should start at the time that the change in their home country took place.

The Convention Against Torture

The Convention Against Torture is a piece of US legislation that prohibits the US from returning individuals to their home countries if they believe those individuals will be subject to torture. If someone wants to remain in the US under the Convention Against Torture, they need to prove that there are substantial grounds to believe that they would be in danger of being tortured if they were returned, and the standard for that is higher than the standard for asylum. The asylum standard is that an individual must prove they have a well-founded fear of future persecution. But to gain status under the Convention Against Torture, the potential for torture to be inflicted has to be more likely than not, and that is a higher bar.

An individual will also need to demonstrate that the harm that they fear they are going to suffer when they go home meets the definition of torture under the Convention. The Convention Against Torture defines torture as any intentional and unlawful infliction of severe physical or mental suffering or pain. The harm has to be inflicted with the consent of the government or a public official for purposes like punishment, obtaining a confession, intimidation or discrimination. Basically, it has to be government-sanctioned or government-inflicted torture. A Virginia asylum attorney can help to prove the possibility of this threat.

Granting Asylum

The length of time that it takes to be granted asylum varies wildly from case to case because it depends on a few factors:

  • whether the individual is applying affirmatively or defensively,
  • where in the country they are located, and
  • whether or not they are in detention while they are applying for asylum.

For instance, if someone is applying affirmatively in Virginia and they are not detained, then their wait time for an asylum interview will probably be between two and three years. The length of time it takes for a final decision to be issued could be even longer if the case is denied at the USCIS level and is sent to the immigration court. That is because right now, the immigration courts in Virginia have a backlog of about five years. In some cases, it could take up to a decade from the start to finish of an affirmative asylum case that is denied at the USCIS level. The process is shorter if the individual is already in removal proceedings because they will skip the USCIS portion.

If someone is applying defensively in front of the immigration court, the length of time it will take to get an individual hearing for an asylum claim depends on where they are in the country and how long the court backlog is.

After a person is granted asylum, they can renew that status indefinitely, but it is highly advisable that they change that status to a legal permanent resident as soon as they are able. They can do that one year after the date that their asylum application is granted. It is much better to become a legal permanent resident because eventually they will be able to apply to become a citizen. Then they will not be at risk of deportation if they are arrested for a crime. It is also easier and safer to travel abroad as a green card holder or citizen than as an asylum holder.

Gaining Legal Permanent Resident Status

To apply for legal permanent resident status, an asylum holder applies for adjustment of status via USCIS Form I-485. They need to apply for this a year after being granted asylum. Assuming they have no criminal convictions, have not traveled back to their home country, and the government has not done anything to impeach their credibility—such as discovering the application was fraudulent—then they will be eligible to apply.