I need help. I am currently in the US have been here for 17 years, came here when I was 18 as a student, I now have American born kids but I have no status.Back home I was a victim of female genital mutilation, in 2013 my daughter traveled back home with my sister and almost got kidnapped by my relatives because they wanted to do an initiation on her and my niece. I have another child back home that was a product of girl initiation rape when I was young. My question is would I be able to file an asylum case at the border If i have relatives in Canada. The reason for that is that my kids would be in danger to go back home, they will go through what I went through. I am not able to file asylum in the US because I could only do that within 1 year of being here but I didn't not have kids then. I have police reports and medical reports. And FGM is legal in my country. Please help
Refugee at the border USA
- Thread starter G4romaf
- Start date
17 years is a long time of wait to remember now that you want to claim refugee.There is a probability of 50% of your case being refused because of the long wait and your children are USA citizens. However, you can try. But keep in mind if your case is refused, you may be being deported to your own country and NOT to the US. You would be eligible to claim refugee at the border, then you would have to wait for a hearing. but the question here: what is your current status in the US?G4romaf said:I need help. I am currently in the US have been here for 17 years, came here when I was 18 as a student, I now have American born kids but I have no status.Back home I was a victim of female genital mutilation, in 2013 my daughter traveled back home with my sister and almost got kidnapped by my relatives because they wanted to do an initiation on her and my niece. I have another child back home that was a product of girl initiation rape when I was young. My question is would I be able to file an asylum case at the border If i have relatives in Canada. The reason for that is that my kids would be in danger to go back home, they will go through what I went through. I am not able to file asylum in the US because I could only do that within 1 year of being here but I didn't not have kids then. I have police reports and medical reports. And FGM is legal in my country. Please help
5.4. DELAYG4romaf said:I need help. I am currently in the US have been here for 17 years, came here when I was 18 as a student, I now have American born kids but I have no status.Back home I was a victim of female genital mutilation, in 2013 my daughter traveled back home with my sister and almost got kidnapped by my relatives because they wanted to do an initiation on her and my niece. I have another child back home that was a product of girl initiation rape when I was young. My question is would I be able to file an asylum case at the border If i have relatives in Canada. The reason for that is that my kids would be in danger to go back home, they will go through what I went through. I am not able to file asylum in the US because I could only do that within 1 year of being here but I didn't not have kids then. I have police reports and medical reports. And FGM is legal in my country. Please help
When claimants do not take steps to seek protection promptly, decision-makers often conclude that their behaviour shows a lack of subjective fear. Case law has been consistent in saying that delay in making a claim to refugee status is not in itself determinative. Three often-cited Federal Court of Appeal decisions acknowledged that delay is, nonetheless, a relevant, and potentially important consideration.Note 48 In Huerta, Mr. Justice Létourneau wrote:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.Note 49
As Madam Justice Simpson explained in Cruz,Note 50 the reason why delay is an important factor in the assessment of a refugee claim is because it addresses the existence of a subjective fear, which is an essential element of a Convention refugee claim.
Although not generally a determinative factor in a refugee claim, there are circumstances in which delay can assume a decisive role. A claim to be a Convention refugee may be rejected when delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.Note 51 Such a determination would be made on the basis of a claimant's failure to provide good reasons for the delay. Mr. Justice Crampton remarked that it is
[...] well established that, in the absence of a satisfactory explanation for the delay, the delay can be fatal to such claim, even where the credibility of an applicant's claim has not otherwise been challenged.Note 52
The Board must weigh the evidence and it may reject an explanation for the delay if it finds it inadequate or implausible on reasonable grounds.
It is essential that decision-makers express clearly their findings on the credibility of a claimant's explanation for behaving in a particular manner. When the Board does not accept an explanation as valid, the member is obliged to give reasons.Note 53 In Requena,Note 54 the Board asked the claimant to explain why she had returned to Bolivia, and then simply concluded that she had no subjective fear of persecution. Madam Justice Dawson held that the Board could not make that finding unless it found the evidence to be incredible - which it had not done.
The length of the delay is often a factor taken into considerationNote 55 but it is not in and of itself determinative. While short delays may tend to be more easily explained,Note 56 even very long delays cannot be assumed to indicate a lack of subjective fear. They must be examined in light of the circumstances and the explanations offered by the claimant. Madam Justice Bédard reviewed a decisionNote 57 where the Board had found a six-year delay in claiming to be incompatible with the attitude of a person who feared for her life. However, the claimant was a minor when she arrived to live with some relatives in Canada and the Court held:
[...] There is a presumption that a person having a well-founded fear of persecution will claim refugee protection at the earliest opportunity. If they do not, the legitimacy of the subjective fear that they allege is called into question (Singh citation omitted) This presumption makes sense in the context of an adult refugee who, upon entering Canada, is expected to be aware that in order to stay in Canada indefinitely, he or she will need to regularize their status. However, the mere existence of delay in claiming cannot always be construed as indicating an absence of subjective fear. The delay, and even more importantly, the reasons for the delay, must be assessed in the context of the specific circumstances of each case. (underlining added)
Canadian case law has consistently stressed that the assessment of the credibility and reasonableness of explanations must be done in light of the particular circumstances of the claimant. In the case of El-Naem,Note 58 the Court found that the 19-year-old Syrian claimant's explanation for spending a year in Greece without claiming was not unreasonable "considering all of his circumstances." The young man testified that he had heard that refugee protection in Greece was problematic and he feared deportation to Syria if he exposed his illegal status. He was alone in Greece, anxious to join a brother in Canada who had successfully claimed refugee status. However, he first had to accumulate the money he needed to travel.
In a similar vein, case law has also pointed out the need to closely assess the reasons a claimant engages in behaviour that would normally be seen as incompatible with having a fear. In one case where the Board found that the claimant had no subjective fear because he continued to put himself at risk by returning home to protect his mother against her abusive husband, the Court observed that bonds of family loyalty may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear.Note 59
Psychological reports may provide useful insight into the reasons for a claimant's behaviour, and thus whether or not a particular way of behaving can be taken to be indicative of an absence of fear. In Diluna,Note 60 the Trial Division held, in obiter, that the Refugee Division should have considered a psychiatric assessment that supported the claimant's assertion that she delayed seeking refugee status due to post-traumatic stress syndrome.
Not all expert reports, however, are probative regarding the issue of subjective fear. In one case,Note 61 the Court noted that though there was a psychological report, it provided no explanation justifying the claimant's 14-month delay in claiming protection in Canada. In another case in which the claimant had voluntarily given up protection in the U.K.,Note 62 it was argued that her mental disorders would have affected the rationality of her decision to give up protection. The Court rejected that argument because the psychiatric report submitted was dated more than two years after she left the U.K. and did not establish that the claimant was suffering from any mental disorder at the time she gave up protection.
http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Pages/RefDef05.aspx
Currently I have no status in the US,I had a work permit but it expired last year. So you are saying the period that I have been here does play a role in decision making? Thank you for your helpkey78 said:17 years is a long time of wait to remember now that you want to claim refugee.There is a probability of 80% of your case being refused because of the long wait and your children are USA citizens. However, you can try. But keep in mind if your case is refused you may be being deported to your own country and NOT to the US. You would be eligible to claim refugee at the border, then you would have to wait for a hearing. but the question here: what is your current status in the US?
Thank you so much this is very informative. The reason I was not able to do it earlier was that I didn't have any kids then, my oldest is 11 years old, and the wake up call came when she visited in 2013. that when we realized that this was still a big issue back home.key78 said:5.4. DELAY
When claimants do not take steps to seek protection promptly, decision-makers often conclude that their behaviour shows a lack of subjective fear. Case law has been consistent in saying that delay in making a claim to refugee status is not in itself determinative. Three often-cited Federal Court of Appeal decisions acknowledged that delay is, nonetheless, a relevant, and potentially important consideration.Note 48 In Huerta, Mr. Justice Létourneau wrote:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.Note 49
As Madam Justice Simpson explained in Cruz,Note 50 the reason why delay is an important factor in the assessment of a refugee claim is because it addresses the existence of a subjective fear, which is an essential element of a Convention refugee claim.
Although not generally a determinative factor in a refugee claim, there are circumstances in which delay can assume a decisive role. A claim to be a Convention refugee may be rejected when delay is accepted as evidence that establishes, on a balance of probabilities, that the claimant lacks subjective fear.Note 51 Such a determination would be made on the basis of a claimant's failure to provide good reasons for the delay. Mr. Justice Crampton remarked that it is
[...] well established that, in the absence of a satisfactory explanation for the delay, the delay can be fatal to such claim, even where the credibility of an applicant's claim has not otherwise been challenged.Note 52
The Board must weigh the evidence and it may reject an explanation for the delay if it finds it inadequate or implausible on reasonable grounds.
It is essential that decision-makers express clearly their findings on the credibility of a claimant's explanation for behaving in a particular manner. When the Board does not accept an explanation as valid, the member is obliged to give reasons.Note 53 In Requena,Note 54 the Board asked the claimant to explain why she had returned to Bolivia, and then simply concluded that she had no subjective fear of persecution. Madam Justice Dawson held that the Board could not make that finding unless it found the evidence to be incredible - which it had not done.
The length of the delay is often a factor taken into considerationNote 55 but it is not in and of itself determinative. While short delays may tend to be more easily explained,Note 56 even very long delays cannot be assumed to indicate a lack of subjective fear. They must be examined in light of the circumstances and the explanations offered by the claimant. Madam Justice Bédard reviewed a decisionNote 57 where the Board had found a six-year delay in claiming to be incompatible with the attitude of a person who feared for her life. However, the claimant was a minor when she arrived to live with some relatives in Canada and the Court held:
[...] There is a presumption that a person having a well-founded fear of persecution will claim refugee protection at the earliest opportunity. If they do not, the legitimacy of the subjective fear that they allege is called into question (Singh citation omitted) This presumption makes sense in the context of an adult refugee who, upon entering Canada, is expected to be aware that in order to stay in Canada indefinitely, he or she will need to regularize their status. However, the mere existence of delay in claiming cannot always be construed as indicating an absence of subjective fear. The delay, and even more importantly, the reasons for the delay, must be assessed in the context of the specific circumstances of each case. (underlining added)
Canadian case law has consistently stressed that the assessment of the credibility and reasonableness of explanations must be done in light of the particular circumstances of the claimant. In the case of El-Naem,Note 58 the Court found that the 19-year-old Syrian claimant's explanation for spending a year in Greece without claiming was not unreasonable "considering all of his circumstances." The young man testified that he had heard that refugee protection in Greece was problematic and he feared deportation to Syria if he exposed his illegal status. He was alone in Greece, anxious to join a brother in Canada who had successfully claimed refugee status. However, he first had to accumulate the money he needed to travel.
In a similar vein, case law has also pointed out the need to closely assess the reasons a claimant engages in behaviour that would normally be seen as incompatible with having a fear. In one case where the Board found that the claimant had no subjective fear because he continued to put himself at risk by returning home to protect his mother against her abusive husband, the Court observed that bonds of family loyalty may lead a person to engage in dangerous conduct that otherwise could be viewed as conduct inconsistent with a lack of subjective fear.Note 59
Psychological reports may provide useful insight into the reasons for a claimant's behaviour, and thus whether or not a particular way of behaving can be taken to be indicative of an absence of fear. In Diluna,Note 60 the Trial Division held, in obiter, that the Refugee Division should have considered a psychiatric assessment that supported the claimant's assertion that she delayed seeking refugee status due to post-traumatic stress syndrome.
Not all expert reports, however, are probative regarding the issue of subjective fear. In one case,Note 61 the Court noted that though there was a psychological report, it provided no explanation justifying the claimant's 14-month delay in claiming protection in Canada. In another case in which the claimant had voluntarily given up protection in the U.K.,Note 62 it was argued that her mental disorders would have affected the rationality of her decision to give up protection. The Court rejected that argument because the psychiatric report submitted was dated more than two years after she left the U.K. and did not establish that the claimant was suffering from any mental disorder at the time she gave up protection.
Yes it plays a role with other factors. Please read the link I sent. However, you can claim refugee at the official government borders as you stated that you have a family in Canada. However, there is no guarantee your case would be accepted. You would know the decision after the hearing.G4romaf said:Currently I have no status in the US,I had a work permit but it expired last year. So you are saying the period that I have been here does play a role in decision making? Thank you for your help
All I can say for now is that "get a smart competent lawyer who can help you with your case"G4romaf said:Thank you so much this is very informative. The reason I was not able to do it earlier was that I didn't have any kids then, my oldest is 11 years old, and the wake up call came when she visited in 2013. that when we realized that this was still a big issue back home.
Thank you, you have been so helpful.key78 said:All I can say is that "get a smart competent lawyer who can help you with your case"
I am happy to help. read those links tooG4romaf said:Thank you, you have been so helpful.
http://www.cic.gc.ca/english/department/laws-policy/menu-safethird.asp
http://www.cic.gc.ca/english/department/laws-policy/refugee-claims.asp