The U.S. immigration laws allow individuals to apply for asylum if they have been subjected to past persecution or have a well-founded fear of persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. A person must be physically present in the United States to apply for asylum. The law requires that one of the protected grounds (race, religion, nationality, political opinion, or membership in a particular social group) be one central reason for the persecution.
The term persecution is not defined in the Immigration and Nationality Act or the regulations. One case has stated that persecution is “a threat to the life or freedom of, the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Examples of persecution can include but are not limited to: beatings/physical harm, rape, sexual assault/abuse, female genital mutilation, threats and attacks, detention, kidnapping, and torture. An adjudicator will look at the severity of what occurred and view the incidents in the aggregate to determine whether what occurred amounts to persecution. The persecution must be by the government or someone the government is unwilling or unable to control.
An applicant who establishes past persecution on account of a protected ground triggers a rebuttable presumption of future persecution. The presumption can only be rebutted if DHS establishes a fundamental change in circumstances or that the applicant can safely or reasonably relocate within the country. Even if DHS meets its burden of overcoming the presumption, an applicant may be eligible for humanitarian asylum based on the severity of past persecution or a fear of other serious harm. An applicant can also establish eligibility for asylum without a showing of past persecution if he or she has a well-founded fear of future persecution on account of a protected ground.
There are two ways to file for asylum in the United States: (1) by filing an affirmative asylum application with USCIS; or (2) defensively with an immigration court. Where to file the application depends on the applicant’s situation. With some limited exceptions, a person who is not or has not been in removal proceedings would file their asylum application with USCIS. Examples of exceptions would be a person who entered on the visa waiver program or who entered as a crewman. In those cases, a person could apply with an immigration judge in asylum-only proceedings. If the asylum case is not granted and the applicant does not have any valid immigration status, the case would be referred to the court and the applicant can renew the application in immigration court, where an immigration judge can make an independent determination of whether the applicant warrants grant of asylum. A person can also apply in removal proceedings with the immigration court even if they never applied with USCIS. This is a defensive asylum application.
An asylum applicant must file their application within one year of their last entry to the United States. There are exceptions for changed circumstances or extraordinary circumstances that prevented a timely filing. Changed circumstances include a change in country conditions or some change in personal circumstances that materially affects a client’s eligibility for asylum. Extraordinary circumstances include failure to file because the applicant was in status or other circumstances such as medical issues that prevented a timely filing.
Bars to asylum include a conviction for a particularly serious crime, firm resettlement, persecution of others, and security grounds. Asylum is a discretionary form of relief.
If an individual is in removal proceedings and is not able to show that they meet the requirements for being granted asylum, they may be able to seek related benefits such as withholding of removal or protections under the Convention Against Torture. These forms of relief have related but distinct legal standards, and they offer different protections and benefits. For example, an individual who is granted withholding of removal or protections under the Convention Against Torture is able to apply for work authorization and is shielded from immediate removal but will not be able to petition for family members, travel outside of the United States, or obtain lawful permanent residency as a result of their status.
If a person is granted asylum, they may eventually be eligible to apply for lawful permanent residency and U.S. citizenship. In some cases, individuals seeking asylum may be able to include certain immediate family members (spouses and children) in their application or petition for them to be permitted to enter the United States after the application is granted.
The U.S. asylum laws are complex. It is now more difficult than ever to be granted asylum due to changes in the law. It is important to have an experienced attorney assist in navigating through this process.