Asylum is a process by which a foreign national may seek permanent residence in the United States, based on a history or reasonable fear of persecution in their country of origin, whether for political, religious, ethnic or other reasons. A person may apply for asylum while residing within the United States.
To gain asylum status, one must first be a refugee. Under American law, a refugee is foreign national who is:
- outside of the country of his or her nationality (or, in the case of a stateless person, outside of any country in which he or she last habitually resided), and
- unable or unwilling to return to that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.
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An alien may file an application for asylum in two ways: affirmatively with the Department of Homeland Security or defensively with an immigration judge after the Department of Homeland Security has initiated removal (i.e., deportation) proceedings. In both affirmative and defensive applications, asylum claimants are entitled to have an attorney represent them, either at their own expense or through a nonprofit agency. Both affirmative and defensive claims are made on Form I-589.
Affirmative Asylum Applications
Asylum claims filed affirmatively are decided by an asylum officer. After an interview (through the applicant’s own interpreter, if needed), the officer determines if the applicant is telling the truth and is in fact a refugee. The officer will either grant the application or initiate removal proceedings if the applicant is not in valid immigration status.
This risk of denial and deportation means that affirmative asylum applicants need to be aware of these frequently cited reasons for denial:
- The officer is not convinced the I-589 was filed within a year of the applicant’s arrival in the U.S., and nothing legally justifies the delay.
- The applicant has persecuted other people on account of their race, religion, nationality, membership in a particular social group or political opinion.
- The applicant has been convicted of a particularly serious crime.
- After his or her persecution, the applicant firmly resettled in another country before coming to the U.S.
In addition, three grounds for denial are often the result of avoidable mistakes:
- The applicant’s written or spoken description of events lacks detail, the written and spoken accounts contradict each other, or the story doesn’t make sense to the officer.
- The persecution that the applicant suffered wasn’t on account of race, religion, nationality, membership in a particular social group or political opinion. Commonly, applicants focus too much on the severity of harm they’ve suffered, neglecting to explain why they were persecuted. Applicants also need to communicate how they know their persecutors’ motive.
- The applicant’s fear of future persecution isn’t well founded or reasonable. Commonly, asylum officers fault applicants for not seeking safety within their own country before leaving it or for failing to explain why this wasn’t feasible.
Defensive Asylum Applications
Whether or not an affirmative application has been filed, an alien in removal proceedings before an immigration judge has the right to pursue an asylum claim. The criteria for granting that claim are the same, but the process is different:
- The adjudicator is a judge.
- An attorney for the Department of Homeland Security is present to cross-examine the applicant.
- The applicant may call witnesses.
- The court provides the interpreter.
To those aliens who do not qualify for asylum (e.g., did not meet the filing deadline), the judge may grant protection from removal that is similar to asylum but not as beneficial. Thus, the alien might qualify for withholding of removal. Withholding forbids the Department of Homeland Security from sending the alien to a country where, according to the immigration judge, he or she is more likely than not to be persecuted. Withholding recipients are entitled to renewable work authorization but cannot leave the U.S. or attain residency unless an employer or qualifying family member petitions for them and both the department and the judge agree to reopen the removal case.
Similarly, the Convention Against Torture protects those who convince the judge that they would face torture if returned to their country of origin. There are two forms of convention relief: withholding under the convention resembles statutory withholding, described above; deferral of removal is mere protection from removal. Granted most often to aliens convicted of certain crimes, withholding under the convention does not necessarily entitle an applicant to be released from detention.
By comparison with withholding and convention benefits, asylum is generous. A person seeking asylum in the United States is entitled to be employed regardless of whether he or she carries an employment authorization document.
- Asylees may apply for and leave the U.S. on a refugee travel document (but any such departure may trigger the asylee to become inadmissible if he or she was unlawfully present before attaining asylum).
- If asylees apply with a qualified refugee-resettlement agency promptly after receipt of asylum, they may apply for social benefits such as housing vouchers and medical insurance.
- One year after attaining asylum, asylees may apply for residency.
Asylum may be terminated if the applicant returns to the country from which he or she sought refuge or if the applicant is convicted of criminal activity.
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