Every year, the U.S President or POTUS in consultation with congress allocates regional refugee admissions as well as an overall admission ceiling, for example, 76,000 was the number of refugee admissions authorized in 2012 and70,000 was proposed for 2013 by the Office of Refugee Resettlement. Africa’s regional allocation has consistently been about 10% (12,000-15,000) of the ceiling for the last 5 years. In 2011 and 2012 alone conflicts in Africa have created 850,000 new refugees, therefore, for an African to be granted asylum in U.S among the allocated 12,000, one must fulfill certain stringent eligibility criteria.
Africa Asylum seekers should be aware that some immigration lawyers are used to dealing with East Africans, while others mainly deal with Nigerians, Egyptians, etc. Inasmuch as immigration lawyers in U.S. may and can represent anyone anywhere (MLG’s main offices being in Charlotte, NC does not mean we cannot represent you in Maine or Oregon) within the United States, most have curved out their own niches. Therefore, in respect of division of labor principle, you are better off working with the lawyer who can pronounce and point out the location of your country on a map than one who’s heard it for the first time rolling off your lips. I would do the same. 48% of the my clientele are from Africa and being an African immigrant myself – I know a thing about representing Africans with their immigration issues and no – its wrong to tell an immigration lawyer that “I am from Africa, I am seeking asylum” simply because Africa is not a country, it is a continent with 54 different countries. In short, specifics matter!
Many a client shows up at my door with bangled-up asylum cases. The following is a checklist if you will for those coming out of Africa with a mind to claim for asylum. I will use a hypothetical case to make things clearer or logical:
Kamau, a Kenyan taxi driver, used operate his stand at the now-famous Westgate Shopping Mall in Nairobi, Kenya. On September 21st, 2013, a group of Al-Shabaab terrorists attacked the mall holding several hostages and killing others indiscriminately. The Kenya Defense Forces (KDF) took charge of the siege and rescued most of the hostages. The siege lasted 80 hours and resulted in 67 deaths. During the siege, Kamau’s taxi was commandeered by a high-ranking military officer, Toroitich, who used Kamau’s taxi the entire duration of the siege. Understandably, Kamau witnessed several events- first-hand including all the loot that he ferried to the Officer’s home continuously. Sometimes, Officer Toroitich sent Kamau to buy and bring several crates of booze and cigarettes for the “exhausted” KDF soldiers. Kamau gladly shared his story with a BBC Reporter thinking it was an excellent ordeal–unfortunately this story led to an investigation into how the KDF handled the Westgate hostage situation. When Kamau heard that the Officer was hunting for him for telling his story, he went into hiding for 2 months. Through Toroitich’s connections, Kamau is on the National Wanted list as an “Al-Shabaab sympathizer”. Kamau then made arrangements for a U.S B-2 Visitor’s (non-immigrant) visa and is now in the U.S. He is wondering how he can make sure he stays legally in U.S for safety.
In order to be granted asylum, an applicant [Kamau] must first be able to demonstrate that he is “unable or unwilling to return to his home country [Kenya] because he was persecuted on account of either his race, religion, nationality, social group or political opinion.” Mark you, if [Kamau] can prove past persecution, there is a presumption that [Kamau] has a well-founded fear of [future] persecution. Basically, because a refugee/asylee intends to stay here for the foreseeable future, they must establish that his/her return to their country of origin may lead to further persecution. Pursuant to INA § 101(a)(42), acts of persecution must be connected to a refugee ground. Here Kamau “must provide some direct or circumstantial evidence of his persecutor’s [Toroitich’s] motive in order to successfully establish nexus between the persecution and one of the enumerated grounds. INS v. Elias-Zacarias, 502 U.S 478 (1992).
Let’s see whether Kamau is eligible for asylum so far:
Past Persecution: Yes – a) National manhunt for Kamau by Toroitich – a government official and national police; b) hiding for 2 months fearing for his life.
Well-founded Fear: Yes – both subjectively (must hold fear) and objectively (Kamau’s fear is reasonable, even a 10% possibility is sufficient) because Commanding Officer Toroitich is still a member of the Kenya’s Defense Forces.
It should be noted that this evidence may be obtained by Kamau upon arrival here in the U.S. However, where possible a prospective asylum applicant should come along with any documents pertaining to them or their case e.g birth certificates, arrest warrants, summonses, documents proving family relationships, (see attached checklist). Clearly, Kamau will need a lawyer, and if its not yet clear why Kamau may need a lawyer. Here’s why;
1) The claim must be found “credible” by the DHS. In other words Kamau must be believable. Credibility is a combination of testimony and corroboration. You should always try to file an “unanswerable” claim Diallo v. INS, 232 F3d 279 (2nd Cir. 2000). Most asylum affidavits prepared individually are usually “answerable”. For example, what Kamau essentially forgot to say about talking to the BBC Reporter was that “he thought the KDF were behaving unprofessionally and the world ought to know this..” . Furthermore, instead of saying “Toroitich sent [Kamau] for …booze..” Toroitich had actually “ordered” Kamau by force….
2) A lawyer’s input would make certain that contents of Kamau’s affidavit are “internally” and “externally” consistent because his statement must conform to to the evidence supporting the claim and be consistent with the background conditions in the State in which persecution is feared. Matter of Mougharrabi, 19 I&N dec. 439 (BIA 1987).
In Kamau’s case we can go further to prove his eligibility for asylum;
On Account of … Political Opinion – this is the “kitchen sink” of most asylum applications because [political opinion] is generally defined as “relating to an opinion on ANY matter on which the State or its machinery may be engaged..” – Guy Goodwin-Gill, The Refugee in International Law 49 (2nd Ed. 1996). Arguably, Kamau’s reasoning to expose the acts of Toroitich and his soldiers plus the act of “telling” the BBC is an expression of a political opinion which directly led to his inclusion of the “Wanted” list.
Evidentiary Proof: BBC article mentioning Kamau, Reports on Westgate Hostage Crisis, possibly copy of the Arrest Warrant or Wanted List, Mention of Toroitich in the BBC article, Annual Report of U.S Embassy in Kenya.
Even if the applicant [Kamau] cannot strictly prove his eligibility for asylum, on account of one of the 5 grounds, “Serious Harm” may be provable, and by extension he may be eligible for Withholding of Removal and relief under the Convention Against Torture (CAT).
Most African countries have administrative systems that may or may not be mirror the systems here in the U.S. Therefore, it may be hard to explain to an Immigration Judge or Asylum Officer why you claim to have graduated from University in 2002 and yet your physical degree says 2006 or why you got a membership card. That’s where a lawyer who has dealt with similar cases comes in handy. Although not strictly required, a good immigration lawyer will prudently include a legal memorandum in an asylum application.
The reason why most asylum applicants bangle their cases, is because they skip or fail to satisfy most of the above salient points in their initial asylum applications. Mostly because they cannot afford attorney’s fees or due to half-baked “legal” advice from the -Street Committee- such advice is strongly cautioned against simply because [it] is drawn from the ‘advisor’s personal experience. Needless to say, each case is unique, so what worked for one does not translate into a winning formula for the next one.
Furthermore, even if the initial asylum interview goes south and your application is denied – you will be placed in “removal proceedings” where you will individually face an Immigration Judge – without question a lawyer is advisable. In fact, the Judge himself must advise you to seek counsel. It would behoove you to take heed.
In my next article, I will extrapolate how you may overcome an Immigration Judge’s scrutiny in your asylum case. But before that you can always take advantage of MLG’s years of expertise both in the U.S immigration system and in Anglophone and/or Francophone Africa.
By Martin Musinguzi, Esq.
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