Two Common Mistakes in the Asylum Application Process

And the rules affecting asylum seekers in Florida

By Beth Taylor | Reviewed by Canaan Suitt, J.D. | Last updated on December 19, 2023 Featuring practical insights from contributing attorneys Melisa Pena and John Gihon

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When Melisa Peña moved from Peru to the U.S. as a child, she decided to become a lawyer someday so she could help her parents get permanent residency (green card)—a goal she ultimately achieved. For herself, she acquired U.S. citizenship, along with a degree from Florida International University College of Law.

Now, she spends her days helping other immigrants. “The thing my clients like about me is that I’m very honest,” says Peña, an immigration attorney at Jarbath Peña Law Group in Coral Gables. “I feel their pain, and when I cannot help them, and they really don’t have relief, I tell them, and I tell them why.”

Those clients include refugees and asylum seekers: Immigrants who are fleeing persecution in their native countries.

What Is the Difference Between a Refugee and an Asylee?

Refugees apply for status before coming to the U.S. Asylum seekers, by contrast, find their way to the U.S. or a port of entry and then petition to stay based on a well-founded fear of persecution in their home country. There are five grounds of persecution under U.S. immigration law:

  1. Race;
  2. Religion;
  3. Nationality;
  4. Political opinion; or
  5. Membership in a particular social group.

“Being designated as a refugee and having that status comes with a whole cornucopia of government benefits,” says John Gihon, an immigration attorney at Lasnetski Gihon Law in Altamonte Springs. “You are eligible for government benefits such as Medicare, Medicaid, food stamps, welfare and the like. There’s also assistance that we provide to refugees to help them start businesses.”

With more than 5,000 refugees per year, Florida has the largest refugee program in the nation, according to the state’s Department of Children and Families (DCF), whose Refugee Services Program is funded through the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). Cubans and Haitians, who make up the great majority handled through the state’s refugee program, have special status.

If you go to [a non-immigration lawyer] and they submit an application lightly, and the judge finds it to be frivolous, then you no longer qualify for another form of relief. If an asylum is denied, it becomes a deportation order.

Melisa Pena

Two Common Mistakes When Applying for Asylum Status

For people from most countries, qualifying for asylum is no simple matter. “It’s not just coming here and saying, ‘Somebody’s trying to kill me,’ or ‘The gang problem in my country is so bad and everybody is getting killed,’” Peña says. “Now everybody is claiming asylum, so the asylums are very delayed. The only ones that they’re expediting are the ones for minor children.”

Gihon says asylum seekers make two common mistakes: “The biggest problem that people have is ignorance of the law. Many people don’t understand that if you do not apply for asylum within one year of entering the United States, you are automatically disqualified 99 percent of the time.”

2. Getting Help from Non-Immigration Lawyers

The other major problem? Picking the wrong person for assistance. “Notaries and other non-attorneys don’t know the law,” Gihon says. “Unless you’re an immigration attorney who pretty much specializes in asylum law, you don’t know all the nuances, and you can really set clients up for disaster.”

Peña agrees. “If you go to the wrong person and they submit an application lightly, and the judge finds it to be frivolous, then you no longer qualify for another form of relief,” she says. “If an asylum is denied, it becomes a deportation order.” 

The biggest problem that people have is ignorance of the law. Many people don’t understand that if you do not apply for asylum within one year of entering the United States, you are automatically disqualified 99 percent of the time.

John Gihon

Fear of Persecution and Illegal Reentry After Deportation

Peña tells of a Colombian client who was in the U.S. years earlier with family members but got in some trouble and ended up being deported. He became a minister, urging youths to stay away from gangs—for which he was beaten by guerillas. He crossed back into the U.S. and lived with his wife and children for several years, working with the homeless and veterans, before being caught.

“When somebody has re-entered [illegally], there’s only one form of relief, which is the fear of persecution,” meaning that the person fears reprisals if they’re returned to their home country, Peña says. It can be tough to prove, but in this case, she succeeded. “The judge said that this was one of the few cases where you actually reflected that, even though the person made a mistake, everything they have been doing has been good. When his wife found out [he could stay], she dropped to her knees and was crying.”

Find an Experienced Attorney for Immigration Services

Gihon’s victories include cases representing Iraqi nationals whose lives were in danger because they had helped the U.S. against terrorist forces.

“You’ll have the U.S. military and sometimes other federal government agencies actually physically bringing them over here to save their lives, and then we’ll have government agencies here in the United States who try to deport them,” says Gihon. “So I’ve had a couple of situations where I have been able to help.”

What Peña would like to see is amnesty for refugees who have been here for many years. “They should be allowed to at least have a work permit and [driver’s] license,” she says. “If you don’t want to give everyone a path to citizenship, it’s understood. But allow them to be a functional part of society. Even though they live in fear of getting caught here, it’s still better than getting killed in their country. They’re going to stay here.”

Visit the Super Lawyers directory to find an experienced immigration lawyer in your area. For additional information on U.S. immigration law, asylum application processes, and immigration court, see our immigration law overview and related content.

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