What is asylum?
Every year, nearly 100,000 people are granted asylum or refuge in the United States, due to suffering past persecution or fear of suffering future persecution in their home country. The United States allows such people to seek protection from being sent back to their home country. Some are granted refugee status outside of the United States, and others apply for asylum after they flee to the U.S. You may apply for asylum, even if you have lawful immigration status, such as a nonimmigrant visa. Once granted asylum or refugee status, they can bring certain family members to the U.S., and apply for legal permanent residence in the United States after one year.
What is the difference between asylum and being a refugee?
Refugees (those granted refuge) are people who are outside of the United States at the time they seek permission to immigrate to the U.S., while asylees (those granted asylum) are people who have been granted asylum in the United States. Other than this difference in location, asylees and refugees are largely the same, in that they are people who qualify for protection due to persecution in their home country.
Who qualifies for asylum in the United States?
People who seek asylum are those who fear persecution on account of one or more of the protected grounds of the following five categories:
- Political opinion
- Membership in a Particular Social Group (such as sexuality, ethnicity, tribal or indigenous membership, having a disease, previous membership in the military or police, gender, domestic violence, population control, witnesses testifying against gang members, etc.)
For an asylum applicant to be considered at risk of persecution, the individual must be targeted either by their country’s government, or by groups that the government is unable or unwilling to control.
What is persecution?
Generally, according to case law, persecution is 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.” It can be difficult to define exactly, but generally speaking, persecution is mistreatment that is more serious than discrimination or harassment, and must involve significant physical force or barbaric conduct. The harm or suffering does not have to be physical, but may take other forms, such as severe economic disadvantage or the deprivation of liberty, food, housing, employment, and other essentials of life.
Some examples of the types of persecution because of a protected ground that successful asylum-seekers have faced include:
- Being unfairly targeted for arrest by the police
- Being abducted, assaulted, and/or raped by police or military members
- Being imprisoned by officers who subsequently encourage other inmates to assault or rape the targeted person
- Being beaten, abducted, imprisoned, and/or raped by informal militias or gangs
- Having a relative or romantic partner killed because of personal qualities the asylum seeker shares (ethnicity, religion, beliefs, sexuality, etc.)
- Being forced to be sterilized, have an abortion, undergo genital mutilation, or any other inhumane medical procedures, or being at risk of punishment for refusal to do so
- Being deprived of the ability to earn a living or secure food and shelter
- Having property confiscated or destroyed
- Suffering mental, emotional, or psychological harm due to the actions of persecutors, or by being forced to do personally abhorrent acts by persecutors
In order to successfully appeal for asylum, an asylum seeker must be able to show that the persecution was due to one or more of the protected grounds listed above. To illustrate, someone who endures what the United States would consider inhumane treatment as punishment for having committed a normal crime would likely have a difficult time qualifying for asylum, unless the crime or the inhumane treatment is connected to a protected ground (i.e. someone imprisoned for theft wouldn’t qualify for asylum, while someone arrested for violating laws forbidding certain political or religious beliefs, or for being gay or transgender, may qualify for asylum).
Can I apply for asylum if I haven’t been actively persecuted?
Yes. A person need not have actually suffered persecution in the past to qualify for asylum. A person may qualify for asylum if they can show a well-founded fear of future persecution that is reasonable, both objectively and subjectively. It may be more difficult to apply for asylum on the basis of a fear of future persecution alone, but it is possible. It may be helpful to show that other people like them have been targeted for mistreatment in their home country to show their credible fear of suffering future harm if they return. In addition, they must show that they cannot relocate to a safe part of the country or firmly resettle to a third country to escape the harm.
How can I apply for asylum?
Asylum-seekers must file their application for asylum within one year of their most recent arrival in the United States. Failing to do so will result in the denial of asylum, unless they qualify for an exception due to extraordinary circumstances that relate to the delay in filing, or changed country or personal circumstances (such as recently coming out as gay or transgender, recent changes in the political or legal landscape of their home country that would target them for unfair persecution, being recently diagnosed with a severe mental disorder, or being under the age of 18 when first arriving in the United States).
To apply for asylum, an applicant must submit the following:
- A completed I-589 Application for Asylum and Withholding of Removal
- A detailed personal statement of the applicant’s personal situation
- Any documents which support the applicant’s claimed fear of persecution
- Any documents which demonstrate how the applicant’s home country is mistreating those who are similar to the applicant
There are two types of asylum filings: affirmative, and defensive. Affirmative applications are filed with the USCIS. The applicant will be summoned for an interview, where they are asked about their life history and why they are at risk of persecution if they return to their home country. Usually, within two weeks of the interview, applicants will be informed of the USCIS’s decision. If denied, and the person has no lawful status to remain in the U.S., the case will be referred to an immigration judge in Immigration Court. Defensive applications are filed in Immigration Court by people who are already in removal proceedings. Asylum cases in Immigration Court will be set for trial, where the applicant may bring witnesses to testify to support their claims. Please note that certain criminal or security related bars may apply to the grant of asylum. The processing of asylum cases can take months, or even years.
An experienced immigration attorney can help you guide through this journey. It is imperative that you have a persuasive package and follow the correct procedures for a successful asylum claim.