enter the USA asylum

Who Can Seek Asylum in the United States?

Legal Assistant Administrative Law, Immigration Law, International Law

Asylum is a legal protection afforded to individuals who’ve fled their home country, where they’ve undergone persecution, or have a legitimate fear of getting persecuted if they were to return in the future. It gives them a chance to start a new life in a foreign country.

The process of seeking asylum in the US is not as easy as you might think. You need to understand the legal requirements involved and potentially prepare extensive documentation to prove that you meet those requirements. Here’s what you need to know.

Types of Asylum

An individual seeking asylum in the US must be physically present at a port of entry to the US or already be within the US borders at the time of application. There are generally two paths you can use to apply for asylum.

Affirmative Asylum

This path allows a foreign national, who doesn’t have any ongoing removal proceedings against them, to proactively lodge an asylum application to the government through the Department of Homeland Security’s – US Citizenship and Immigration Services (USCIS) division.

Once a USCIS officer reviews the application, they may either grant it or deny it if they find that the individual has no valid reason(s) for seeking asylum in the US. If the officer rejects the application, the applicant will have to go through removal proceedings, meaning the US government issued orders to deport them from the country.

Defensive Asylum

To fight a deportation decision made by the government, an applicant would have to present their case before an immigration judge at the Department of Justice’s Executive Office for Immigration Review (EOIR). The judge will hear the case and determine whether the applicant has a valid reason to remain under the legal protection of the United States.

This process is referred to as “defensive asylum” since it involves asylum seekers defending themselves against deportation from the US.

Asylum laws are complex. If you choose to file an application, ensure you seek assistance from an experienced immigration attorney to give you the best possible outcome, particularly if returning to your home country poses a genuine threat to your safety and well-being.

Other Possible Defenses Against Removal

If the judge dismisses your defensive asylum application, you can use two other defenses to fight your removal.

Withholding of Removal

Asylum seekers who don’t qualify for asylum may be eligible for Withholding of Removal. This immigration status may not allow you to get a green card, but it will grant you the legal documentation you need to live and work lawfully in the United States.

To get Withholding of Removal, you will need to prove to the court that the possibility of suffering future persecution on the grounds of your political opinion, social group, religion, nationality, or race, is more likely than not. Keep in mind that the standard of proof required for Withholding of Removal is much higher than asylum.

Convention Against Torture

If you fear that returning to your home country may result in torture, you may qualify for relief under the provisions of the Convention Against Torture (CAT). To be eligible for CAT protection, you would need to demonstrate that the possibility of getting tortured by your home government, or with its “acquiescence,” is more likely than not.

The term “acquiescence” means that the government in your country of origin is aware of the torture being inflicted on you but doesn’t intervene to stop it from happening.

Valid Reasons for Seeking Asylum in the US

A blue folder with the label Asylum applications

The standard asylum definition uses the term “persecution.” It is legal protection offered by a nation to an individual who has fled their home country because of a very legitimate fear of persecution. Not everyone qualifies for asylum status. To do so, you need to demonstrate that:

  1. You are unwilling or unable to go back to your country of origin because you have a legitimate fear that doing so will lead to your persecution or that you have been persecuted in the past.
  2. The reason for your potential or past persecution is related to any of the following grounds: belonging to a particular social group, religion, nationality, or race, or having an unfavorable political opinion.

Here’s what these requirements mean.

Persecution

Persecution refers to harassment, punishment, injury, oppression, or any other unjust action that causes physical or psychological harm to an individual. The US immigration law doesn’t specify the type of persecutory actions that would qualify someone for asylum status.

Nonetheless, based on past court cases, persecution includes actions that deny an individual of their fundamental human rights and freedoms, unjustifiable imprisonment, torture, violence, and threats.

Historically, the United States has granted asylum status to individuals whose home government has:

  • Committed genocide against a particular nation, race, or ethnic group
  • Excluded members of a specific religion from the political process
  • Opened fire on protesters
  • Tortured and imprisoned political dissidents or undesirables

The US government in recent years has also expanded its asylum protection to include individuals who are persecuted based on their gender – which is by definition, a “social group.”

As a result, women who have undergone or have a well-founded fear that they will be subjected to hostile cultural practices, including female genital mutilation, domestic violence, or forced marriage, can gain asylum.

Thousands of Trump administration asylum seekers were denied legal protection after the Attorney General at the time, Jeff Sessions, reversed immigration rulings that had previously set the legal precedent for individuals fleeing their home countries on account of gender-based or gang-related violence.

In June 2021, the Attorney General under the Biden administration, Merrick Garland, overruled that decision, effectively restoring critical protections for those asylum seekers.

Grounds of Protection

As mentioned before, the United States grants asylum protection to individuals who have been persecuted in their home country in the past or have a well-founded fear of being persecuted in the future if they return, on the grounds of their political opinion, social group, religion, nationality, or race.

Persecution based on one’s religion, nationality, and race is pretty much self-explanatory. This section explores the remaining two – political and social-based persecution.

Political Opinion

Political-based persecution means that an individual holds and disseminates opinions that the government does not tolerate. These opinions are likely critical of the administration’s methods and policies, which in turn causes the authorities to go after them.

An asylum seeker would have to demonstrate that:

  1. The government in their country of origin is aware of their political views
  2. They have been persecuted or have a genuine, well-founded fear of being persecuted in the future because of those views

You would have to show proof of publicly published written criticisms, participation in anti-government demonstrations, or public speeches where you have been critical of the government.

You may also qualify for asylum protection if you can prove that the authorities erroneously assume that you hold an unfavorable political opinion based on a personal characteristic such as your ethnicity, family membership, or religion. This assumption is known as imputed political opinion.

Social Group Affiliation

This particular reason for asylum application has been a hotly contested topic and the subject of several legal arguments. By definition, a social group refers to people who share specific common characteristics fundamental to their identity. Members cannot change these characteristics, nor should they be expected to. Such groups are recognized as distinct entities within society.

A few examples of the social groups whose members have sought and been granted asylum in the United States include ethnic groups or tribes, family members of political dissidents, targeted individuals of certain social statuses such as educated elites, former military personnel, and police officers who may be the targets of assassination.

Who Can Seek Asylum in the United States

Asylum in the United States

The Migration and Refugee Assistance Act of 1962 was enacted in response to the urgent and unexpected needs of conflict victims, displaced persons, refugees, and other at-risk individuals worldwide.

In 2001, the Clinton administration brought it into force to assist the Nepal and Balkans crisis victims. In 2009, the Obama administration cited the Act to authorize the release of $20.3 million to address the needs of the Gaza conflict victims.

Anyone with a legitimate fear of persecution based on their political opinion, social group, religion, nationality, or race can seek asylum in the US. Keep in mind, though, that the right of asylum isn’t always based on government-instigated persecution. It can also stem from other groups that the government has no control over including, organized vigilantes, paramilitary groups, warring tribes, or guerrillas.

Nonetheless, the root cause of the persecution needs to have some underlying social or political undertone. If members of a criminal network come after you or your family for failing to pay off a debt, asylum and refugee law does not consider that persecution.

Objective vs. Subjective Fear

It’s not enough to be afraid of future persecution to qualify for asylum. That fear needs to be “well-founded.” You would need to demonstrate to the US Immigration authorities that your fear is both subjective and objective.

Subjective fear means that you are genuinely and personally scared of returning to your home country. On the other hand, objective fear means that you can show concrete facts that demonstrate a genuine threat to your safety and well-being.

Demonstrating objective fear may involve getting witnesses to give credible, persuasive testimony on your behalf and proof of the persecution you might have undergone in the past. Doing this demonstrates to the US authorities that any reasonable person in your shoes would be afraid of returning home.

Humanitarian Asylum

If you have been persecuted in the past, the natural presumption would be that returning to your home country would expose you to persecution in the future as well. What if the US government argues that the conditions in your country of origin have since changed and that it is now safe for you to return?

If you are still unable or unwilling to return, an immigration attorney can help you apply for “humanitarian asylum.” Through your lawyer, you would have to demonstrate that the severity of the persecution you went through in the past, alongside the reasonable possibility of suffering severe harm upon your return, is still a looming threat to your safety and well-being.

Here are some possible scenarios that might make you eligible for humanitarian asylum:

  • Everything you previously owned was destroyed
  • The risk of severe psychological trauma upon your return
  • The possibility of remaining a social outcast even if the threat of persecution no longer exists.

How to Seek Asylum in the US

The difference between being granted asylum status and refugee status all boils down to when you apply and where you are at the time of application. Individuals outside the US have to go through the UN High Commission for Refugees (UNHCR) to apply. However, they cannot specify the country they want to go to in their application.

The United States has an annual limit on the number of refugee applications the President can approve for entry into the country.

On the other hand, asylum is granted to individuals who are already at a US port of entry or those already inside the country – legally or otherwise. Here’s an overview of the asylum application process.

  1. First, you’ll need to file and submit Form I-589 along with all relevant supporting documentation to the USCIS.
  2. You’re then required to present yourself for an interview at the USCIS Asylum Office in your current jurisdiction.
  3. At the interview, you will be asked a series of questions about your reasons for seeking asylum, your past experiences, and your fears about returning to your home country.
  4. The USCIS interviewing officer will then review your application and deliver their decision within 180 days.
  5. If the outcome of your asylum case status isn’t favorable, you can present your case before an immigration judge once the government initiates removal proceedings against you.

Seek Professional Assistance

Getting an experienced immigration attorney to help you lodge your application, prepare for the interview, and present your claim can significantly increase your odds of being granted asylum.

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