Asylum is a type of legal protection available to individuals who are afraid for their safety if forced return to their home country. If granted asylum, an individual is allowed to stay in the United States indefinitely with employment authorization. In addition, after living in the United States for one year after being granted asylum, an asylee is eligible to apply for a green card.
To qualify for asylum, an individual must demonstrate that they meet the definition of a refugee under Section 101(a)(42)(A) of the Immigration and Nationality Act. An individual is classified as a refuge if they can demonstrate:
- That they are outside their country of nationality (or in the case of a person having no nationality, the country where they last habitually resided);
- They are unable or unwilling or return to their home country because of past persecution or a well-founded fear of future persecution; and
- The past persecution or well-founded fear of future persecution is on the basis of race, religion, nationality, membership in a particular social group, or political opinion.
For purposes of being granted asylum, the definition of what constitutes persecution is extremely broad. Persecution has broadly been defined as “a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive”. Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). While U.S. immigration law does not list specific examples of what constitutes persecution, court cases have held that persecution can include such acts as: being beaten or tortured; imprisonment; substantial economic deprivation; and death threats.
The threat of persecution to an applicant must be a country-wide threat. If an asylum applicant can avoid future persecution by simply relocating to a different area of their home country, they do not qualify for asylum.
In addition, an applicant must show that the persecution is on the basis of race, religion, nationality, membership in a particular social group, or political opinion.
While race, religion and nationality are very straightforward, it is much more difficult to define membership in a particular social group, or political opinion. Of the five categories, persecution based on membership in a particular group is the hardest to define. A social group refers to a group of people who hold a “common, immutable characteristic”, that is “so fundamental to their individual identities”, that the members of the group cannot, or should not be expected to change it. Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985). In addition, the group must be perceived as a distinct entity by society.
Examples of particular social groups that have been recognized by the United States government for purposes of asylum include: homosexuals, women subject to forced marriages, honest cops fighting against police corruption, witnesses who testify against drug cartels, and employees of the United States government.
Persecution based on political opinion can be based on either a person’s actual political opinion or on imputed political opinion (the government mistakenly assuming that an individual holds certain views). In order to qualify for asylum based on an actual political opinion, an applicant will have to demonstrate that they acted on their political opinion in such a way that their government knew of their political opinion, such as taking part in political demonstrations, or speaking in public.
An application for asylum must be filed within 1 year of the applicant’s last arrival in the United States. If an applicant failed to apply for asylum within one year of their last arrival in the United States, they may still be eligible to apply for asylum if they can demonstrate extraordinary circumstances caused the failure to timely file the application. In addition, an applicant can file an application for asylum after they have been in the United States for over a year, if they demonstrate that there are changed circumstances in their home country that would materially affect the applicant’s eligibility for asylum.
There are two types of asylum applications depending upon whether or not removal proceedings have been brought against an individual in Immigration Court. If removal proceedings have not commenced, then an individual applies for asylum through the affirmative asylum process. To file for affirmative asylum, an applicant files Form I-589, Application for Asylum and for Withholding of Removal, with the designated USCIS Service Center for the region of the country where they live. The applicant’s case will then be forwarded to a regional asylum hearing office where an interview will be scheduled to determine the validity of the applicant’s asylum claim.
If an applicant’s asylum case is denied, the case will be referred to Immigration Court. In Immigration Court, the applicant will have the opportunity to argue for asylum again through the defensive asylum application process.
Individuals in removal proceedings in Immigration Court, may file for asylum through the defensive asylum process. In a defensive asylum case, the individual (known as the respondent) will testify, present witnesses, and present evidence, at a hearing known as an Individual Hearing on the Merits of the Application, which usually lasts several hours. At the end of the hearing, the judge will decide whether the respondent is eligible for asylum. If the judge finds that the respondent is eligible for asylum, asylum will be granted. If the judge finds that the respondent is ineligible, the respondent will be ordered removed from the United States. The judge’s decision can be appealed by either the United States government or the respondent.
Speak to an Experienced Immigration Attorney Today
Hallett Immigration Law Group is experienced in in both affirmative and defensive asylum, and has filed asylum cases for clients from many different countries and backgrounds. If you would like to speak with our staff about asylum, please contact us at (708) 354-8200 or fill out a contact form online. We offer free consultations in person or by phone.
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