Asylum is a form of protection available to aliens presently in the United States who believe that they will be persecuted if forced to return to their country of origin. If asylum is granted, the alien can stay in the United States and eventually adjust their status to that of a lawful permanent resident. It is important to note that any alien who is physically present in the United States or who arrives in the United States, regardless of his status, may apply for asylum. Under very rare circumstances, certain individuals may also apply for asylum outside of the United States. There is no yearly quota on the number of individuals who may be granted asylum (except individuals whose claims are based on persecution for resistance to population control measures). There are two main paths by which aliens can apply for asylum: 1) the affirmative asylum application process and 2) the defensive asylum application process.
Two Paths To Asylum
The affirmative asylum application process occurs when an alien, that is not in the government's custody, files an I-589 Application for Asylum form with the United States Citizenship and Immigration Services (USCIS). In this instance, the alien must file his asylum application within one year after his arrival in the United States. Under this approach, the alien is free to live in the United States pending the completion of the application process. If the alien satisfies all of the asylum requirements, the USCIS officer can approve the application. If the USCIS officer does not approve the application, the application is referred to an Immigration Judge (IJ) at the Immigration Court, part of the Executive Office for Immigration Review (EOIR). The IJ will hear evidence presented by the alien and his attorney and determine whether the application should be approved.
The defensive asylum application process occurs when an alien files the I-589 Application for Asylum form as a defense in the alien's removal proceedings. As such, an alien who is subject to deportation or removal proceedings may apply for political asylum to prevent deportation/removal. In this situation, the IJs hear these cases in the Immigration Court. The IJ hears the applicant's claim, and any objections or concerns raised by the United States Government. The IJ then makes a determination of eligibility for asylum. If the IJ finds that the alien is eligible for asylum, he or she can approve the application. However, if the applicant is not eligible, nor eligible for any other forms of relief from removal, the IJ will order the alien removed from the United States.
The law provides that an alien may be granted asylum if the alien is a refugee within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act (INA). A refugee is any person who is outside any country of such person's nationality and who is unable or unwilling to return to, and 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. In addition, the INA offers protection to alien women from being forced to abort their pregnancy or to undergo involuntary sterilization in their home countries. As such, to qualify for asylum protection the alien must establish that he or she is:
- Unable or unwilling to return to his country of nationality;
- Was subjected to past persecution or because of a well-founded fear of future persecution; and
- The persecution is based on race, religion, nationality, membership in a particular social group, or political opinion.
It is the applicant's responsibility to establish that there is a reasonable possibility that he or she will be persecuted if forced to return to their country of origin.
Regarding the first asylum element, in most cases the mere fact that the applicant applied for asylum is evidence that the applicant is unwilling to return to their country of origin. Regarding past persecution, the alien must show that the entity that harmed him or her is either
- An agent of that government or the government is unable or unwilling to control that entity and
- That the harm suffered actually amounts to persecution.
To establish actual persecution, the level and type of harm experienced by the applicant must be sufficiently severe or grave. Finally, regarding the well-founded fear of future persecution, the applicant must establish the following four elements:
- Capability; and
To prove possession, the applicant must establish that he possesses the trait that the persecutor seeks to overcome. For awareness, the applicant must establish that the persecutor is aware or could become aware that the applicant possesses that trait. Regarding capability, the applicant must establish that the persecutor has the capability to persecute the applicant. Finally, for inclination, the applicant must establish that the persecutor has the inclination to persecute him. For further information regarding asylum in the United States, please visit the following web sites:
Asylumlaw.org - Global clearinghouse of case support and legal tools relating to asylum claims.
United States Asylum Officer's Training Material-posted on Asylumlaw.org.
National Immigrant Justice Center- The National Immigrant Justice Center (NIJC) provides direct legal services to and advocates for low-income and impoverished immigrants, refugees, and asylum seekers.