ASYLUM BASED ON PERSECUTIONFor Refugees or people fearing to return home
Asylum is an immigration benefit conferred on someone who is in the United States or attempting to enter the United States and is found to be a “refugee.” It is also a form of relief from removal or deportation. A person who receives asylum is allowed to remain in the United States indefinitely with authorization to work and travel internationally, although not to the country from which he or she sought asylum. An asylee may apply for permanent resident status one year after being granted asylum.
A refugee is any person who is unable or unwilling to return to his country because of a well-founded fear of persecution on account of one of five “protected categories”: (1) race, (2) religion, (3) nationality, (4) membership in a particular social group, or (5) political opinion. If a person fears returning to his or her home country, but that fear is not based on being a member of any of the protected categories, that person is not eligible for asylum. Bad conditions in the country of origin alone, such as civil strife, war or poverty will also not suffice for asylum. In addition, the fear of returning to that country must be well-founded. In most cases, this means that the person has suffered “persecution” in the past.
What is exactly persecution?
“Persecution” is a threat to the life or freedom of, or the infliction of harm or suffering upon, those who differ in a way regarded as offensive. Many asylees have been jailed before, tortured, or threatened, which may amount to persecution. If the applicant can demonstrate that he/she has been persecuted in the past, his fear of future persecution is presumed to be well-founded. Even if the person has not been persecuted in the past, he or she can still prove well-founded fear by showing that there is a reasonable possibility that he or she will be persecuted in the future.
To qualify for asylum, the foreign national must apply within one year of entering the country. The exceptions to this one-year filing deadline are if there were extraordinary circumstances preventing the person from filing in time, or if there are changed circumstances, meaning that the incidents giving rise to the fear of persecution occurred after the person entered the country. In this case, the applicant must apply within a reasonable time after the incidents occurred.
Some examples of changed circumstances would be a coup d’etat or war breaking out in the native country after the person entered the United States. If the person is present in the United States on a valid status, that is considered an extraordinary circumstance, and that person may file for asylum past the one-year deadline as long as he files within a reasonable time after his authorized stay expires. If the asylum application is time-barred, the person still may qualify for Withholding of Removal. This is a form of relief that has similar requirements to asylum, but not as many benefits. Withholding of Removal will prevent the person from being removed or deported, but will not lead to permanent residence or citizenship.
Process for Applying
There are two processes to apply for asylum:
- 1. If the applicant is not already in removal proceedings, he or she will file the asylum application with USCIS. The applicant will be called for an interview at USCIS’s offices.There, an asylum officer will interview the applicant and review any supporting evidence to evaluate the merits of the case. If the asylum officer chooses not to approve the asylum application and the applicant is not in valid immigration status, the case will be referred to the Immigration Court and the person will be placed in removal proceedings. He or she will then have the opportunity to have his case reconsidered by the immigration judge in an adversarial hearing.
- 2. If the applicant is already in removal proceedings at the time that he/she decides to seek asylum, the applicant must file directly with the Immigration Court. He or she will receive a full hearing and a determination by the immigration judge. If the judge denies the application, the applicant may appeal that decision to the Board of Immigration Appeals.
The criteria for a successful asylum application are extremely complex, and there is a penalty for filing a frivolous asylum claim. Therefore, if you have a fear of returning to your country, you should meet with a reputable immigration attorney with expertise in asylum law in order to evaluate your options and likelihood of success. If you have a fear of returning to your country and need to file for asylum, call us today before you file. We’ll determine your best strategy to get you positive results and show you how we avoid common issues that can lead to delays and denials.