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Immigration Law

Asylum and Refugee Eligibility For Hong Kong Protestors

In the wake of the Hong Kong protests, some of the activists have sought asylum in the United States. Some politicians in the United States have sought to pass the Hong Kong Safe Harbor Act to make it easier for these activists to receive asylum.

What is the Purpose of the Hong Kong Safe Harbor Act?
The purpose of the Hong Kong Safe Harbor Act is to make it easier for refugees from the Hong Kong political protests to achieve legal status in the United States. As such, the bill would make the following changes to the asylum application process for these applicants:
(1) Hong Kong residents who participated in peaceful protests will be considered Priority 2 Refugees — individuals who are in need of resettlement.
(2) There will be no numerical limitation on the number of Hong Kong residents who will be accepted as asylum seekers.
(3) Normally, non-immigrant visas are not issued for individuals who seem to have an intent to immigrate. This bill would remove this limitation for Hong Kong residents who were arrested for the protests, or who served an organizing or humanitarian role in the protests, and they will be able to receive non-immigrant visas to enter the U.S. even if the visa office believes that they intend to apply for asylum and immigrate to the U.S.
(4) If Beijing revokes Hong Kong residency when individuals apply for refugee status or a U.S. visa, then the U.S. immigration office will consider the act of revoking that residency to be political persecution.

When Will the Hong Kong Safe Harbor Act Take Effect?
The Hong Kong Safe Harbor Act has not yet passed. It was first introduced in summer of 2020, and congresspeople have now re-introduced the Act this past February, 2021. While the bill does have bipartisan support, there is no guarantee that it will pass. If it does pass in its current form, the bill would be in effect for five years.
However, even if the bill does not pass, if you are from Hong Kong and you are fleeing persecution, you may be eligible for asylum under the current standards of asylum.

What are the Current Standards for Asylum Eligibility?
In order to be eligible for asylum in the United States, you must have suffered past persecution or have a well-founded fear of future persecution in your home country.
Forms of “persecution” that the U.S. government has recognized include, but are not limited to: physical violence, torture, credible threats of death or serious harm, unlawful confinement, psychological harm, serious economic deprivation, forced abortions or sterilization, or serious harassment or discrimination. If the asylum seeker is a child, their family members suffering some of these forms of persecution may be considered the child suffering persecution too, because they are part of the family unit.
The persecutor must be either: a government agency or a group or individual that the government is “unwilling or unable to control.” Many factors contribute to the finding that the government agency cannot or will not control a persecuting group, so if you are unsure, consult a legal expert about your case. You can make an appointment with Attorney Jon Wu to discuss if you may qualify. You may be eligible even if you did not make a police report, as long as you reasonably believed that a police report would not help or would expose you to further harm.
The persecutor must have been motivated to harm you because of one of the five following traits: race, religion, nationality, political opinion, or membership in a particular social group. Membership in a particular social group is the most flexible category, but also very elusive. The general standards for the “social group” are: the group must be clearly-defined and it must be a group characteristic that you cannot change or should not be required to change because it is a crucial part of your identity. There may be more than one motive for your persecution, but one of the five listed categories must be at least one of the motives.
Finally, to be eligible for asylum, you must apply within one year of your arrival in the United States.

I Fit All of the Asylum Eligibility Standards, but I’ve Been in the U.S. for More Than One Year. Do I Have Any Chance?

There are several circumstances where you may be eligible for asylum even if you have been in the United States for more than one year.
First, children are usually not subject to the one-year limitation, since they are considered to have a de facto legal disability and cannot be expected to apply upon their arrival in the United States.
Second, if your circumstances have changed, even outside the one-year period immediately after your arrival, you may be eligible for asylum provided you apply in a reasonable time period after the circumstance changes. Reasonable examples of changed circumstances include: changes in the country you left, changes in your own circumstances (including new involvement in political activities, coming out as LGBTQ+, or any other relevant personal changes), or a change in a different asylum application that included you (for example, if you were a derivative of a relative’s asylum application, but that relationship no longer exists due to aging out, marriage, divorce, or death).
Third, you may be eligible for asylum even after one year if you were subject to “extraordinary circumstances.” These “extraordinary circumstances” include: if you had a serious mental or physical illness (including the after-effects of trauma), if you have or had legal disabilities (including ineffective legal assistance), if you had a different lawful nonimmigrant status while in the United States, if you did file within one year but the application was rejected, or if you experienced the death or serious illness of your legal counsel or an immediate family member.
Even if you do not think that any of these exceptions apply to you, you may still be eligible for relief based on your past suffering, since even people who are not eligible for asylum may be eligible for Withholding of Removal. Make an appointment with Attorney Jon Wu as soon as possible to consult him about your potential eligibility for asylum.

What Benefits Does Asylum Give Me?
Asylum does offer a path to citizenship. First, asylum recipients can become lawful permanent residents, meaning you can work and legally reside in the United States. After five years of permanent residency, asylum recipients can apply to become citizens of the United States.

I Think I May Be Eligible for Asylum. What Do I Do?
Consult an immigration attorney, or make an appointment with Attorney Jon Wu as soon as possible. It is very important for asylum seekers to apply for asylum in a timely manner so that they are eligible for all possible relief.

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