ASYLUM

Asylum offers protection to people who have suffered persecution or fear that they will suffer persecution due to:

  • Race

  • Religion

  • Nationality

  • Membership in a particular social group

  • Political opinion

Asylum has three basic requirements. First, an asylum applicant must establish that he or she fears persecution in their home country. Second, the applicant must prove that he or she would be persecuted on account of one of five protected grounds: racereligionnationalitypolitical opinion, and social group. Third, an applicant must establish that the government is either involved in the persecution, or unable to control the conduct of private actors.

There are two ways to apply for asylum while in the United States:

  • If an asylum seeker has been placed in removal proceedings before an immigration judge with the Executive Office for Immigration Review, which is a part of the Department of Justice, the individual may apply for asylum with the Immigration Judge.

  • If an asylum seeker is inside the United States and has not been placed in removal proceedings, he or she may file an application with U.S. Citizenship and Immigration Services, regardless of his or her legal status in the United States. However, if the asylum seeker is not in valid immigration status and USCIS does not grant the asylum application, USCIS may place the applicant in removal proceedings, in that case a judge will consider the application anew. The immigration judge may also consider the applicant for relief that the asylum office has no jurisdiction to grant, such as withholding of removal and protection under the Convention Against Torture. Since the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act passed in 1996, an applicant must apply for asylum within one year[11] of entry or be barred from doing so unless the applicant can establish changed circumstances that are material to his or her eligibility for asylum or exceptional circumstances related to the delay.

There is no right to asylum in the United States; however, if an applicant is eligible, they have a procedural right to have the Attorney General make a discretionary determination as to whether the applicant should be admitted into the United States as an asylee. An applicant is also entitled to mandatory "withholding of removal" (or restriction on removal) if the applicant can prove that her life or freedom would be threatened upon return to her country of origin. The dispute in asylum cases litigated before the Executive Office for Immigration Review and, subsequently, the federal courts centers on whether the immigration courts properly rejected the applicant's claim that she is eligible for asylum or other relief.

The applicant has the burden of proving that he (or she) is eligible for asylum. To satisfy this burden, an applicant must show that she has a well-founded fear of persecution in her home country on account of either race, religion, nationality, political opinion, or membership in a particular social group. The applicant can demonstrate her well-founded fear by demonstrating that she has a subjective fear (or apprehension) of future persecution in her home country that is objectively reasonable. An applicant's claim for asylum is stronger where she can show past persecution, in which case she will receive a presumption that she has a well-founded fear of persecution in her home country. The government can rebut this presumption by demonstrating either that the applicant can relocate to another area within her home country in order to avoid persecution, or that conditions in the applicant's home country have changed such that the applicant's fear of persecution there is no longer objectively reasonable. Technically, an asylum applicant who has suffered past persecution meets the statutory criteria to receive a grant of asylum even if the applicant does not fear future persecution. In practice, adjudicators will typically deny asylum status in the exercise of discretion in such cases, except where the past persecution was so severe as to warrant a humanitarian grant of asylum, or where the applicant would face other serious harm if returned to his or her country of origin. In addition, applicants who, according to the US Government, participated in the persecution of others are not eligible for asylum.

US asylum law is very complex.  Please contact ILG for a case specific evaluation.

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