Refugee Legal Clinic: Resources for Pro Bono Attorneys

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There are many  different ways to legally remain in the United States.  The major categories of immigration options are:  

• Family-sponsored immigration  
• Employment-based immigration 
• Diversity visas 
• Temporary (nonimmigrant) visas 
• Humanitarian immigration programs (temporary and permanent protections), including 
  • Asylum
  • Temporary Protected Status (TPS) 
  • Parole 
  • U-visas / T-visas / S-visas 

Sometimes, noncitizens may qualify for more than one type of immigration status. Noncitizens can apply for all the forms of immigration status for which they may qualify.

Asylum is a type of protection granted to noncitizens physically present in the United States or arriving at the border who satisfy the international legal definition of a “refugee.” Under international law, a refugee is a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.

There are two primary ways in which a noncitizen may apply for asylum: 

• Affirmative Asylum: Generally, a person who does not have a case pending before an immigration court must apply for asylum from U.S. Citizenship and Immigration Services (USCIS). They will mail their asylum application to USCIS, which makes a decision following an interview of the noncitizen by an asylum officer at an USCIS Asylum Office. USCIS may grant asylum or may refer certain noncitizens to the immigration court for removal proceedings. In removal proceedings, a noncitizen can then renew the request for asylum before an immigration judge.
• Defensive Asylum: A person who is in removal proceedings before an immigration court generally applies for asylum through the “defensive” process by filing the application with an immigration judge in immigration court. In this context, asylum is considered a defense against removal from the U.S. If asylum is not granted by the immigration judge, the noncitizen in some cases can be ordered removed from the United States.;

USCIS
The sites below will aid representation of affirmative asylum seekers seeking asylum before USCIS

Immigration Court
At the following sites, you will find access to practical tools for defensive applications filed for clients already in removal proceedings. Please note that the Immigration Court Practice Manual is more than guidance, as it contains the rules that govern removal proceedings.

Sample Documents

Asylum Seeker Advocacy Project has compiled examples of immigration documents from the government and provided brief explanations of each.

• Asylum Seeker Advocacy Project (ASAP) has compiled examples of sample immigration documents from the government and provided brief explanations of each. 

• Immigration Justice Campaign also has many sample documents and asylum materials to assist attorneys and asylum applicants 

Below are links to sample intake questionnaires. These may reveal other problems or opportunities to pursue residency/relief from removal. While these lists may be useful tools, they are not comprehensive and should not be relied on exclusively to obtain information relevant to your representation.

This helpful manual from the National Immigrant Justice Center offers a checklist on pages 25-29 to help you identify some of the bars to asylum and related protections. For users who establish a free account, the Immigration Justice Campaign has also developed a tool to help screen for potential bars to asylum. It’s highly recommended that you consult with an immigration expert if your client has any potential bars to eligibility for asylum.  

Some immigration statuses that often overlap include asylum, TPS, and parole, because they all help people who are afraid of returning to their home country and/or need to come to the United States for humanitarian reasons. 

• Asylum provides protection to a noncitizen to remain in the United States and prevents them from being deported or returned to his or her home country. An asylee (someone who has been granted asylum) is authorized to work in the United States, will receive a Social Security number, and can petition to bring family members to the United States. Asylees may also be eligible for certain government benefits. After one year, an asylee may apply for lawful permanent resident status (i.e., a green card), and later they may be eligible to apply for United States citizenship. 
• TPS provides temporary protection and work authorization to nationals of certain countries experiencing armed conflict, natural disasters, and other emergencies. Even if you have already applied for asylum, you can also apply for TPS, and vice versa. 
• Parole is a temporary admission to the United States that can be authorized on a case-by-case basis involving urgent humanitarian or significant public benefit reasons. 

Additionally, within the umbrella of what is often referred to as “asylum” in the United States, there are three related forms of humanitarian protections.  The following chart comparing these forms of protection was adapted from AILA’s Asylum Primer. 

The following list outlines the elements necessary to develop a legal theory for asylum. Several categories derive from the definition of a refugee at INA § 101(a)(42), which INA § 208(b)(1)(B)(i) requires an asylum applicant to satisfy.

As you prepare, identify relevant facts and supporting documentation for each of the following:

1. Physical Presence in the U.S.
   One cannot apply for asylum from outside the United States. INA § 208(a)(1).
2. Outside Country of Nationality or Last Habitual Residence
   Applicants must be seeking asylum protection from their country of nationality, or if stateless, country of last habitual residence. INA § 101(a)(42). Nationality is generally associated with one’s passport issuer and the country in question’s nationality laws. See, e.g., Kinfe v. Ashcroft, 121 F. App'x 675 (8th Cir. 2005) (finding applicant was a national of Eritrea, rather than Ethiopia, despite her birthplace and heritage because of her Eritrean passport and the country’s nationality laws).
3. Unable / Unwilling to Return to and Avail Self of that Country’s Protection
   Persecution requires “harm or suffering . . . to be inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.” Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998); see also Galloso v. Barr, 954 F.3d 1189 (8th Cir. 2020) (noting the unable/unwilling standard controls to the extent that it conflicts with the condone/complete helplessness standard).
4. Past Persecution Suffered or Well-Founded Fear of Persecution
   Establishing past persecution affords an applicant a rebuttable presumption that they possess a well-founded fear of future persecution on the same basis. 8 C.F.R. § 1208.13(b)(1). Absent past persecution, an applicant must demonstrate a well-founded fear of future persecution that is “both subjectively genuine and objectively reasonable.” Bracic v. Holder, 603 F.3d 1027, 1034 (8th Cir. 2010).
5. Protected Grounds
   Applicants must establish their status or imputed status associated with one or more of the protected grounds: race, religion, nationality, membership in a particular social group (PSG), or political opinion. INA § 208(b)(1)(B)(i).
6. Nexus
   Applicants must establish their protected ground(s) were “one central reason” for the persecution they endured and/or fear. INA § 208(b)(1)(B)(i). "Under the ‘one central reason’ nexus standard, a protected ground need not be the sole reason for persecution, but the protected ground cannot be ‘incidental or tangential to the persecutor's motivation.’” Garcia-Moctezuma v. Sessions, 879 F.3d 863, 868 (8th Cir. 2018).
7. Credibility & Corroboration
   Applicants receive no presumption of credibility, but their testimony alone may be sufficient to meet their burden of proof. INA § 208(b)(1)(B)(ii-iii); see also REAL ID Act of 2005.

This annotated declaration from the immigrants' rights organization Immigration Equality is one example of the evidence you may submit. It demonstrates the key components that an asylum seeker should lay out in their personal declaration. The document need not demonstrate satisfaction of each element for asylum in and of itself but should strive to do so wherever possible. The supporting evidence and legal theory you articulate may fill in the gaps and/or bolster an already complete argument.

Many resources are available to overcome language barriers between you and your client. Whether your meeting is in-person or over the phone, you can utilize the Iowa International Center to schedule an interpreter in advance or utilize their 24/7 emergency interpreter hotline. Language services are available from many other reputable businesses that can be located by online searching.

All written communications should also be translated to your client’s preferred language. Both USCIS and the immigration court will likewise require certified translation of all documents—including affidavits, birth certificates, etc.—that were originally composed in a language other than English.

An interpreter should be employed in lieu of a family member or friend whenever possible. The National Immigrant Justice Center provides this guide (also linked from their website) to working with an interpreter for tips on effective communication and building trust. If your client indicates they have recently learned English, it is good practice to ask some initial questions that cannot be answered in a yes/no format to gauge their comprehension.

• Afghan Asylum 101 Video in Dari, Pashto, and English (from the ABA)

  • This video series explains the asylum process for Afghans in Dari, Pashto, and English. Produced in November 2021, it follows the i-589 Form Application for Asylum under "Operation Allies Welcome."

• AILA Provides Translated Forms in Pashto and Dari
  • Form I-589 in Pashtu
  • Form I-589 Instructions in Pashtu
  • Form I-589 in Dari
  • Form I-589 Instructions in Dari
• ABA COI/HIAS Resources
  • To assist all Afghan asylum seekers who plan to pursue their asylum claims pro se, ABA COI /HIAS developed a comprehensive Pro Se Asylum toolkit; Dari translation also available.  
  • The ABA provides access to recordings of numerous webinars that pro bono attorneys will find useful in representing asylum applicants, including a multi-part series assists lawyers representing Afghan asylum applicants. (Afghan series also available via the ABA YouTube channel.)