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How to Request Asylum During Immigration in California

If you are looking to request asylum, you have likely experienced something traumatic or have reason to fear for your life or safety in your home country. If the trauma or fear was inflicted because you fit into certain protected categories, you may qualify for asylum. 

At Pakpour Banks LLP, our attorneys and staff provide the compassionate representation you need to help you request asylum. Immigration in California follows the same laws as the rest of the country but is nevertheless unique. If you are seeking California asylum during immigration, our firm’s attorneys can help. Regardless of whether you request asylum affirmatively with the United States Citizenship and Immigration Services (USCIS) or defensively after being placed in removal proceedings—the stakes are high.  Give yourself the best chance at success by putting our experience to work. Contact us to help you obtain the asylum you seek.

Who Qualifies for Asylum?

To qualify for asylum, you must be seeking protection in the United States because you have been persecuted or have a credible fear of persecution based on your:

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

You can qualify for asylum based on actual membership in one of these five categories, known as protected characteristics. You may also qualify for asylum if your persecutors wrongfully believe you fit into one of the categories. This is called an imputed characteristic.  

What Is a Particular Social Group?

Court cases have explored what it means to be a member of a particular group. The group must:

  • Share a common, immutable characteristic,
  • Be socially distinct from other groups, and 
  • Be defined with particularity.

To be defined with particularity means to be identifiable and have clearly defined boundaries, usually precluding definitions that include a large portion of the population. 

The Bureau of Immigration Affairs (BIA) and the US courts have identified several types of particular social groups, for example:

  • Family or clan membership,
  • Age,
  • Gender,
  • LGBTQ status, and
  • Physical or mental disability.

Gender alone is rarely enough to prove membership in a particular social group, but it can qualify when combined with other characteristics. For example, a particular social group may include women or girls at risk of female genital mutilation, widows, victims of domestic violence who cannot escape their partners, or people who refuse to comply with gendered dress codes.

In contrast, the courts have concluded other groups do not qualify, like:

  • Wealth, 
  • Student status, and 
  • Opposition to gangs.

Ultimately, whether a person is a member of a particular social group is defined by the specific facts about how the society they are fleeing views certain facets of the person’s identity

How Do You Request Asylum?

There are two pathways to asylum in the US. First, you can affirmatively apply for asylum, meaning you ask the government for asylum while not in removal proceedings. If you are in removal proceedings, commonly called deportation proceedings, you can defensively apply for asylum.

Affirmative Asylum 

If you request asylum while you hold another valid status, like a student or tourist visa, you apply with USCIS. You file Form I-589, Application for Asylum and for Withholding of Removal, and include evidence showing you have been persecuted or reasonably fear persecution because of your actual or imputed protected characteristic. 

You then have a chance to prove your case to an asylum officer, including attending an interview at a USCIS location. The USCIS officer can grant asylum, offering you a path to a green card and permanent residence in the US. But even if the USCIS officer does not grant asylum, they cannot deport you. If they conclude your application does not meet the legal asylum standard, they will refer you to immigration court. There, you have a chance to apply for defensive asylum.

Defensive Asylum

If you are placed in removal proceedings or referred to immigration court, you can defend against the government’s charge that you should be removed from the country by requesting asylum. You present your asylum claim before an immigration judge, involving court proceedings that may resemble a criminal trial. Although much of the evidence you offer in a defensive case is the same as in an affirmative case, you will likely testify before a judge instead of in the less formal interview environment.

Asylum in California 

The process for requesting asylum is the same nationwide, but there are unique considerations when immigrating to California using asylum. 

Asylum Seekers by the Numbers

First, a very large proportion of asylum seekers apply in California. From 2019 to 2021, between 28% and 34% of applicants granted affirmative asylum lived in California. Of those granted defensive asylum, 27% to 32% resided in California. Only one state eclipsed California’s asylum numbers in those three years: In 2019, New York’s share of defensive asylum grants was 31% to California’s 27%. 

When you cross a land border, you do not often have a legal status to fall back on. Those who recently sought asylum after crossing the southern border tend to come from places like Venezuela, El Salvador, Guatemala, Honduras, and Mexico. Those who arrive at airports have recently come from China, Turkey, Egypt, India, and Russia. Because it has an airport that is a major international hub and a border with Mexico, California has a unique mixture of asylum seekers who cross the land border and arrive at airports.

Asylum Outcomes in California

Anyone familiar with asylum claims will tell you location is everything, especially when you apply for asylum defensively. Some areas of the country have abysmally low asylum approval rates, like Atlanta’s 91% to 99% denial rate. Thankfully, approval rates tend to be higher in California.

Still, anyone familiar with asylum claims will also tell you the judge you get can matter just as much as the evidence you present. Within California, different judges denied cases between 8% and 100% of the time between 2016 and 2021.

Title 42 and the Circumvention of Lawful Pathways Rule

Asylum levels plummeted in 2020 and again in 2021, thanks to the COVID-19 pandemic. In those years, countries heavily limited international travel. The US was among the countries invoking the pandemic to limit immigration, relying on an old provision called Title 42 that authorized the government to cut immigration in the interest of public health.

Although the Biden administration phased out Title 42’s enforcement, it maintained many of the rules impacting asylum applicants in the Circumvention of Lawful Pathways rule. With some exceptions, the rule authorizes the US government to send you back if you cross the southern land border attempting to seek asylum without first scheduling an appointment. Although this rule has been heavily criticized, it is currently in place and uniquely affects those crossing the border into California.

Let Our Immigration Attorneys Help You 

Seeking asylum is an intimidating process that often comes down to highly technical legal arguments. Not only must you often provide evidence of and potentially relive some of the most traumatic moments in your life, but you must also present that evidence in a way that cohesively supports the legal elements of your asylum claim.

The staff and attorneys at Pakpour Banks LLP are passionate about providing our clients with a safe space to explore whether they may qualify for asylum. If you are comfortable with it, we often include our comfort specialist, golden retriever Rocky Balboa, to help you through difficult conversations. If you want to request asylum in California, contact our firm today.

Author Photo

Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.

Read More Legal Blogs By Brian Pakpour

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