Filling Out I-589 Application for Asylum Guide

How to Fill out the I-589 Application for Asylum Presented by Rachel Kafele, Esq. Oasis Legal Services December 19th, 2024 Facilitated by the AIDS Legal Referral Panel

Agenda 1. Overview of ALRP and the Panel 2. Asylum Application Campaign 3. Substantive Training 4. Q&A 5. Evaluations and Wrap-Up 2

Housekeeping This training is being recorded and all participants are muted. You may enter questions into the Q&A" function, and we will address them during or after the presentation. You must complete the evaluation in order to receive MCLE credit. The evaluation link will appear at the conclusion of the webinar and will be shared in a follow-up email. You will receive receipt of your MCLE credit by email after completion of the evaluation. Please let me know if you did not receive the presentation materials. 3

Our Mission To advance and protect the rights, dignity, and health of people living with HIV/AIDS in the Bay Area. 4

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Panel Attorneys We rely on our Panel to provide low-cost legal counseling and representation on any civil legal matter We tailor the experience to your experience and availability We ask that you accept two referrals a year, with the option to accept or deny a referral when we contact you As a Panel attorney you receive free MCLE trainings, mentoring, malpractice insurance, and legal resources 6

Asylum Applications Campaign Trump Administration vows to deport millions and we need to take him at his word 1000s of undocumented HIV/LGBTQ residents need help Getting Applications in before Trump takes Office 7

The Plan 1. Conducting screening clinics on the 4th& 5thof January. Seasoned immigration attorneys will assess the strength of individuals potential asylum claims or if they are eligible for some other forms of relief (like U visas, etc.). We will then assign the screened individuals to volunteer attorneys hopefully many of you -who will help them prepare their I-589s and submit them no later than January 17. Experienced immigration attorneys readily available to give advice and answer questions as applications are being prepared. 2. 3. 8

How You Can Help Volunteers to Accept Applications and work with clients with their I- 589 Potentially need additional Screeners for the 4th& 5thof January 9

How to fill out the I-589 Application for Asylum Presented by: Rachel Kafele Oasis Legal Services

Learning Objectives After this learning experience, trainees will: 1. Understand the basics of asylum law and the importance of the process; 2. Become familiar with the I-589 Form and supplemental information; and 3. Be able to identify red flags to watch for when providing pro bono assistance to applicants.

1. Jurisdiction 2. Elements of an asylum claim Agenda 3. Bars to asylum 4. Best practices for filing out and submitting Form I-589, Application for Asylum What form to use What information to include Tips and Pitfalls What else to submit with the form when filing Where do you submit the form

Affirmative vs. Defensive Asylum Affirmative: Not in deportation proceedings; applying to be safe from future deportation USCIS is the adjudicator; asylum interview Defensive: In deportation proceedings; shield from imminent deportation EOIR is the adjudicator; asylum merits hearing

Definition of a Refugee A refugee is any person who is outside any country of such person s nationality and who is unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 101(a)(42)(A); see also 8 CFR 208.13 (establishing eligibility for asylum).

Elements 1. Harm that rises to the level of persecution 3. Protected grounds i. race, ii. religion, iii. nationality, iv. political opinion, or v. particular social group 2. On account of ("nexus") 4. By the government OR by non-government actors that the government is unable or unwilling to control PLUS Discretion of the adjudicator

What is a Particular Social Group (PSG)? The BIA s three factors that make a particular social group cognizable: 1. Immutable or fundamental characteristic: members of the group cannot change or should not be required to change because the characteristic is fundamental to their individual identities or consciences Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) 2. Socially distinct: the group is perceived as a group by society and treated distinctly Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014); Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of C-A-, 23 I&N Dec. 951 (BIA 2006) 3. Particular: the group is defined in a manner sufficiently distinct that the group would be recognized, in the society in question, as a discrete class of persons Matter of W-G-R-; Matter of M-E-V-G-; Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008)

PSGs related to HIV status Person with AIDS Memorandum from David A. Martin, INS Office of General Counsel (Feb. 16, 1996) People from X country who are HIV-positive Manani v. Filip, 552 F.3d 894 (8thCir. 2009) HIV+ people who are imputed to be LGBTQ+ based on their HIV status Jean-Pierre v. Attorney General of the U.S., 192 Fed.Appx. 92 (3d Cir. 2006) (unpublished)

How to Establish Eligibility for Asylum - Recap 1. Past persecution + rebuttable presumption of a well founded fear of future persecution Government burden to rebut by preponderance of evidence by showing either: Changed circumstances Reasonable Internal Relocation 2. Well-founded future persecution Even where the presumption of future fear HAS BEEN rebutted , two ways to discretionary asylum grant: 1. Humanitarian Asylum: Other serious harm Past persecution + other serious harm upon return (no nexus requirement for harm) E.g. harm from criminals/gangs with no nexus; medical/health harm 2. Humanitarian Asylum: Severe past harm Compelling reasons for not returning based on the severity of past harm; past harm must have been severe and atrocious Matter of Chen, 20 I&N Dec. 16 (BIA 1989)

Bars to Applying for Asylum* - Denial of previous asylum application - INA 208(a)(2)(C) - Safe third country agreements - INA 208(a)(2)(A) - One-year filing deadline - INA 208(a)(2)(B) Two exceptions: 1. Extraordinary circumstances + reasonable time Mental disability (trauma related diagnosis) can be an extraordinary circumstance 2. Changed circumstances + reasonable time HIV diagnosis can be a changed circumstance * Applicant can still be eligible for withholding of removal and CAT relief

Bars to a Grant of Asylum 4. Engaging in terrorist activity (including providing material support to a terrorist organization ) Even de minimis support (food, shelter, extortion payments) and even support provided under duress 5. Threat to national security 1. Firm resettlement 2. Persecution of others 3. Criminal bars: Conviction of particularly serious crime (includes statutorily enumerated aggravated felonies ) Serious nonpolitical crime committed outside of the United States (no conviction required)

Circumvention of Lawful Pathways (Biden s 1st Asylum Ban) Effective 11:59 pm on May 11, 2023 and covers entries to the U.S. for a period of 24 months Applies to all non-Mexican adults and families seeking asylum at the southern border and all maritime arrivals in the same region Creates a presumption that the applicant is ineligible for asylum unless they (or a spouse or child with whom they are traveling) meet an exception: Unaccompanied child at the time of entry. Approved Parole* (Cuba, Haiti, Venezuela, Nicaragua) Presented at a port of entry ( POE ) with an appointment (ex: CBP One app) * Presented at a POE without an appointment if CBP One app not available due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle. * Sought asylum in a transit country and received a final decision denying their claim.* * also applies if the applicant was traveling with a family member who met the exception, even if the applicant themselves did not

Securing the Border (Biden s 2nd Asylum Ban) Ban in effect when the Department of Homeland Security (DHS) has determined there to be an average of more than 2,500 people entering between ports of entry per day over a seven day period. The ban has been in effect since of June 5, 2024 12:05 am EDT, and will end only after the 7-consecutive-calendar-day average of encounters between the ports of entry falls below 1,500 encounters per day for 28 consecutive calendar days (so never .). When ban is in place, any person who crosses the Southern border is presumed ineligible for asylum unless 1) they were previously granted parole, 2) have made a CBP One appointment, or 3) they are an unaccompanied child. Mexican nationals ARE included in this newest rule.

Rebuttal factors People who are not excepted from the Rules are barred from asylum unless they can rebut the presumption of ineligibility by demonstrating exceptionally compelling circumstances

I-589 Application for Asylum and Withholding of Removal

The Basics of the I-589 Always make sure you are using the current form I-589. Form version and Instructions: https://www.uscis.gov/i-589 Fill in every field Type your answers. Alternatively clear print in black ink Review final printed form Sign it!

I-589: Page #1

I-589: Page #1 CAT check this box to simultaneously apply for protection under the Convention Against Torture.

I-589: Page #1 Biographical information about the applicant Legal name on passport Any other names used Gender https://www.uscis.gov/site s/default/files/document/l egal-docs/DEFA-pre- order-instructions.pdf Addresses

I-589: Page #1 Immigration court history and entry into the U.S. Make sure these are complete and accurate Review applicants passport Use complete date format

I-589: Page #1 Language

I-589: Pages 2&3 Spouse Biographical information about the spouse of applicant Date and place of marriage Location if outside the US, indicate a city and country If spouse will be included on the application (if they are in the US)

I-589: Pages 2&3 Child(ren) Biographical information about the child(ren) of applicant (including step- children if marriage happened before child turned 18 years old) Location if outside the US, indicate a city and country If child(ren) will be included on the application (if they are in the US) The form only has fields to list 4 children; use the supplemental pages to include the additional information.

I-589: Page #4 *This page can be tricky, so pay extra attention Last address outside of the United States May be in a third country Last 5 years of residences Including in and outside the United States

I-589: Page #4 *This page can be tricky, so pay extra attention Education Including vocational and language classes Employment Including periods of unemployment Family

Page #5 Pitfalls and Tips Check all boxes that may apply Past Persecution: How much detail?

Page #5 Pitfalls and Tips Future Persecution: Government unable or unwilling to protect No internal relocation possible

Pages #6 Pitfalls and Tips Accused, detained outside the US Include any interactions with authorities

Pages #6 Pitfalls and Tips Organizational membership e.g. churches, student organizations, consider race/nationality/ethnicity/sexual minority status

Pages #6 Pitfalls and Tips Fear of torture Severity of the harm State action More likely than not

Pages #7 Pitfalls and Tips Other asylum applications

Pages #7 Pitfalls and Tips Firm resettlement Detail countries travelled through on the way to the U.S. Explain lawful status in any other country

Pages #7 Pitfalls and Tips Persecution of others

Pages #8 Pitfalls and Tips Return trips Consider the effect on applicant s well founded fear

Pages #8 Pitfalls and Tips One year filing deadline Address briefly here Ignorance of filing deadline is not sufficient to overcome bar

Pages #8 Pitfalls and Tips US criminal history Any interactions with police

I-589 Parts D, E, F & G; Pages #9-10 Signatures Applicant signature Preparer information Signature at removal hearing

I-589 Supplements A & B Supplement A: additional children Supplement B: any additional information

Filing the I-589 Filing with USCIS https://www.uscis.gov/i- 589#:~:text=If%20you%20want%20to%20apply,your%20Form %20I%2D589%3B%20or https://www.dhs.gov/news/2023/09/07/where-submit-your- form-i- 589#:~:text=We%20encourage%20you%20to%20file,%2Dto% 2Ddate%20mailing%20addresses. Filing with EOIR https://www.uscis.gov/sites/default/files/document/legal- docs/DEFA-pre-order-instructions.pdf