Can I apply for asylum in the U.S. if I posed as a permanent resident in another country?

The question is whether you were "firmly resettled" in another country, the evaluation of which may depend which U.S. jurisdiction you're in.

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Question

I am a Tibetan by nationality and stateless. I left Tibet for India, where I was able to buy a fraudulent permanent resident card, which had to be renewed. I left for the U.S. with a smuggler, who provided a fraudulent Indian passport. I have been in the United States six months and have not renewed this residence in India. Will the asylum officer find that I have been permanently resettled in India and thus bar my application? And if I admit using fraudulent documents in India, will it make it the U.S. government think I am dishonest, and deny me asylum?

Answer

Permanent resettlement in a third country is, in fact, a bar to receiving asylum in the United States. Where you live in the United States will determine how an asylum officer will analyze whether you were firmly resettled outside the United States (based on applicable federal court decisions in that jurisdiction).

Asylum officers in some parts of the U.S. will look at whether you received an offer of permanent residence from another country, while officers in other parts of the U.S. will look at the circumstances surrounding your stay in that country to see whether your standard of living was similar to that of other citizens and residents there.

If you live in a part of the U.S. where firm resettlement is evaluated based on whether applicants received an offer of permanent residence, the asylum officer will closely examine the status you had in India. You will have to explain why the resident card you obtained and did not renew was not an offer of permanent residence. A large part of this explanation will be why you were not able to lawfully obtain a residence permit and therefore why you had to buy one unlawfully. You might also be ready to discuss what it was like living in India with a fraudulent document and how it felt knowing you could be caught and deported.

Since you traveled on what appeared to be an Indian passport, you will also need to explain to the officer exactly how and why you obtained the passport. You will need to convince the officer that the passport is not yours and that you are not an Indian citizen.

As far as your worry about use of fraud, whether someone traveled on your actual travel documents, used fraudulent documents, or walked across the border without inspection, that person should be able to apply for asylum. People can qualify for asylum without worrying about certain bars (called “inadmissibility”) that apply to applicants for other types of immigration benefits.

In a case like yours, however, it will be especially important to explain why you had to obtain fraudulent documents and how you obtained them, so that the officer can properly analyze your claim as a stateless Tibetan.

If you live in a part of the U.S. where the asylum officer analyzes whether you were firmly resettled based on how you lived in India, the officer will need information about the differences between how you lived and how other Indian citizens and residents live. The officer will look at things like whether you were able to travel in the same way as an Indian citizen, whether you were able to buy property, and whether you were able to go to school and work in the same way as other people living in that country.

Wherever you live within the U.S., you should, as part of your asylum claim, detail how you obtained the original resident card fraudulently, making sure to explain that you would have had to renew it in order to continue enjoying its benefits. If you were able to renew the card, explain how you would have done so.

You should also explain whether you were able to attend school, get a job, own property, and freely travel around and out of the country. In arguing that you were not firmly resettled, it will be important to point out that these basic rights were restricted because you were not a citizen or an actual lawful permanent resident. If you were able to live freely as a permanent resident because of your fraudulent card, you should focus on explaining that the card was valid for only a set amount of time. Make sure to explain that, since you did not renew the resident card, you no longer have any status in India at all.

It can be very helpful to consult with an attorney experienced in asylum law to help you prepare your case.

by: , J.D., LL.M.

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