Asylum seekers, who are afraid to return to their home country because they have been harmed in the past or are afraid of harm in the future, are eligible to file for political asylum.
The Immigration and National Act (INA) as an asylum seeker definition “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resided, and who is unable or unwilling to avail himself or herself of the protection of 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.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)(2005). Such persons have refugee status.
The right of asylum means the U.S. government Is not allowed to return persons claiming asylum to their home countries when they have a credible fear of persecution based on race, religion, national origin, political opinion, or membership in a social group. Asylum applications are either affirmative (applying with USCIS before being placed in proceedings) or defense (applying as a defense to a charge of removal in immigration court).
Only by working with an experienced immigration attorney can an asylum seeker submit a proper application under US asylum law. USCIS asylum laws are extremely complex. Let us help you to tell your story so the asylum officer or judge understands what happened to you and why your fear is believable enough to qualify you for asylum.
Asylum applicants must first show they have suffered past persecution or will suffer future persecution in the home country.
Persecution is the infliction of harm which threatens life or freedom. Harm includes beatings, detention, FGM (female genital mutilation) rape, and sexual assault.
The persecutors must be government actors or persons the government is unable to control. Threats alone are not always sufficient to prove past persecution but may be support for a reasonable fear of future persecution.
Forced medical and psychological treatment also qualify as types of persecution. Examples of medical treatment include the forced sterilization of women in China for population control and to eradicate the Uighur population. Psychological persecution includes reeducation camps and the institutionalization of LGBT persons in Russia for conversion therapy.
An asylum applicant must prove a well-founded fear of return to the home country. Well-founded means the applicant has a subjective, genuine fear of harm upon return to the home country because of at least one of the protected grounds (race, religion, national origin, political opinion, or membership in a social group) and an objective fear meaning that a reasonable person in the place of the asylum applicant would also fear persecution upon being returned to the home country. Well-founded also means the applicant has a reasonable chance of suffering persecution. According to the U.S. Supreme Court, “reasonableness” can be as low as just a 10% chance.
Past persecution supports a well-founded fear of future persecution as long as the asylum applicant did not remain too long in the home country or the situation in the home country has so significantly changed that the asylum applicant need not be afraid of returning home. Proving past persecution shifts the burden to the government to prove that country conditions have changed and the applicant no longer needs to fear returning home. As asylum applicant must show he or she cannot move to a different city or region in the home country to escape persecution.
As asylum applicant must file with one year of entry into the U.S. Applicants can file after one year as long as the asylum applicant can prove a significant change in circumstances. However, the asylum office often refers to the immigration court cases filed after the one year deadline.
Winning the asylum claim at the asylum office or before an Immigration Judge allows the applicant to apply for a greencard a year after the grant of asylum.
Withholding of Removal occurs when the asylum applicant is not eligible for a grant of asylum but can prove there is at least a 50% change of persecution if he or she is returned to the home country. Withholding leads to a work permit but not to a greencard card and without permission to travel.
Convention Against Torture is option when an applicant is barred from political asylum but can prove a likelihood that a government actor will torture the applicant if he or she has to return to the home country. Work permits are possible under this category but not greencard cards or travel documents.