by Tatiana B. Durbak, Esq.
During the past month-and-a-half, I have received several inquiries from Ukrainians who would like to file asylum applications, based on the current situation in Ukraine. All of the people were quite insistent that their cases were urgent and were extremely confident that the applications would be granted. The last inquiry was from a gentleman who had already filed his application and who wanted to get employment authorization more rapidly. He believed that if the adjudicator understood the urgency of his need, not only the employment authorization would be granted, but it would be granted in an expedited time frame. That is not the case, however. There are no such shortcuts in asylum process.
These inquiries made me think that there must be people in the community who believe that political asylum applications are now a good way for Ukrainians to obtain or maintain lawful immigration status in the US. Unfortunately, this perception is inaccurate. At the present time, unless one is from Crimea or from one of the areas where Russian agitators are very active, there will usually be insufficient basis to file a successful asylum application.
To be able eligible for a grant of asylum, one must establish that one has a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group. The persecution must be carried out by the government or a group that the government cannot or will not control. There are additional requirements, and each employs terms that have a specific legal meaning that may differ from the ordinary meaning of the word.
Although past persecution can be used as a basis for asylum eligibility, it’s important to know that not all hostile behavior is defined legally as persecution. For example, if one was stopped or harassed by the police, or one’s home was searched a couple of times, or even if one spent a few days in jail, it is not necessarily true that the US government will find this to constitute persecution. Furthermore, if the US government proves that country conditions in the home country changed after the time that the persecution occurred and that the applicant no longer has a reason to fear future harm, the past persecution claim will not establish an asylum claim. If new people take charge of the government, or a new president or prime minister is appointed or elected, the US government will believe that country conditions are now changed and that persecution is no longer likely. The applicant must then prove that the new government will also persecute her/him or that the new government cannot or will not control the group that is causing the persecution.
In almost all asylum cases, corroborating evidence must be provided; a person’s statement or testimony alone will usually be insufficient to win a case. Any untrue or misleading information can result not only in a denial, but in a permanent bar to any immigration benefits.
An asylum applicant may not apply for permission to work (employment authorization) until 150 days have passed from the time of acceptance of the application by USCIS. There are no exceptions to this rule.
Asylum applications must be filed in the office with jurisdiction over one’s place of residence. The approval rates vary among asylum offices and vary from month to month; San Francisco usually has the highest rates of approvals (in the 60% range) and New York the lowest (usually below 20%); the over-all approval rate hovers in the upper 30% range. This means that, across the country, most applications are not approved. If an asylum application is not approved, and the applicant’s period of permitted stay has expired, the case will be referred to Immigration Court, and the applicant will be placed in removal (deportation) proceedings.
Although it is true that many people were killed during the Maidan demonstrations, that many others were beaten, and that much repressive action occurred, there was a change in the government as a result of the demonstrations. There is no indication that the current Ukrainian government is persecuting anyone who participated in or who supported Maidan.
It is possible, in particular circumstances, that a Ukrainian citizen may be eligible to receive an asylum grant. However, no one should file such an application without consulting an attorney who practices immigration law and who has experience doing asylum applications. An un-approved asylum application will usually lead to removal (deportation) proceedings, which are costly – in money, time, and energy. It is important for everyone to be aware of the fact that in the US, notaries are not legal professionals. Translators and other well-intentioned people who do not know the law often offer advice that is inaccurate and which can lead to removal proceedings. People who do not have sufficient money to consult an attorney should consider going to one of the many non-profit agencies, recognized by the US government, which have staff trained in immigration law. A list of such agencies can be found at this website: http://www.justice.gov/eoir/probono/states.htm ; they are listed by state.
Ukrainians who enter the US on a valid visa and whose period of stay has not expired may have other options to prolong their period of stay in the US. A conversation with an attorney who is knowledgeable about such matters is probably a worthwhile investment, because it can enable one to understand the system and the process and to make the plans that best meet one’s needs. Proceeding on one’s own, or with the advice of people who are not experts in the area of immigration law can result in a waste of time, money and effort and in much heartache.
Tatiana B. Durbak has been an immigration lawyer for many years. She has worked in the private and non-profit sectors and currently practices in Pennington, NJ at the Teper Law Firm LLC. She can be contacted at firstname.lastname@example.org