What is Asylum?
Asylum is a protection that’s given to someone leaving their home country due to safety concerns. Put another way, it is a legal status that is applied for by a person who is fleeing persecution in their home country. The United Nations Refugee Act requires the United States to grant asylum to individuals who meet the criteria.
While asylees and refugees seem to refer to the same thing, these terms are used differently under US immigration laws. Asylees are people who apply for asylum while they are inside the United States, while refugees refer to those who are applying for asylum when they are living outside the US.
Qualifications for Asylum
In order to qualify for asylum, you must prove that you have a credible fear of persecution in your home country because of a protected reason. Now this is a loaded statement, which can be broken down into three aspects:
You must have a credible fear of persecution if you return to your country. The US Supreme Court has that there only needs to be at least a 10% chance that you may be subject to torture, imprisonment, or physical abuse for your stated reasons to be considered credible.
You must show that the persecution you may face is caused by the government of your home country or by a group in your home country that the government is unable or unwilling to control.
The persecution you fear cannot be for just any reason. It’s only considered credible if it falls under one of the reasons protected by law.
Protected Reasons for Asylum
1. Race, Nationality, and Ethnicity
Race, nationality, and ethnicity are grouped together because while they’re separate categories, the distinction among the three are often blurred and frequently misused. For example, a Native American or an African American could be considered an ethnicity or a race, whereas Italian Americans would be considered either a nationality or an ethnic group.
Ethnic groups further blur these lines. While an ethnic group usually shares cultural history, linguistic, or shared political history, it doesn’t have to be all three. Think of the Kurds in Syria, Turkey, and Iraq who want their own country. They have similar histories, but the situation in Syria may be different from that in Turkey or Iraq.
An ethnic group can also have racial categories, which are usually based on physical characteristics. Consider the indigenous features of the Mapuche in Chile or the Mayans in Mexico.
While this doesn’t have to be a difference in religion (such as Christians in a Muslim country), it does have to be persecution due to religion. So, for example, if you are targeted by a gang in El Salvador because you worked for a church to help drug abusers beat their addiction, that is considered persecution on account of your religion.
3. Political Opinion
Political opinion refers to attitudes that people have regarding their country, government, or society.
These attitudes can be expressed by voting, party membership, union membership, advocating, or even just commenting on public affairs.
Moreover, political opinion can also be imputed (whether rightly or wrongly) from people’s behavior or who they associate with. For example, an employer can be persecuted for employing a political activist, even if his job has nothing to do with politics and the employer didn’t know about his activism.
Another example, is someone who’s targeted as a homosexual because they have a gay friend. This can be considered an imputed political opinion, or a particular social group which is the next protected reason.
4. Particular Social Groups
Particular social group refers to a group sharing a common characteristic that’s so fundamental to their individual identities, they cannot or should not be expected to change it. It refers to people who have similar backgrounds, social status, lineage, experiences, or habits.
Shared characteristics could be something you were born with like gender, color, or family ties. It can also be based on shared experiences like property owner, former gang member, former military officer, or former police officer.
Here are other examples of particular social groups based on case decisions and appeals:
- Child soldiers;
- Family members of dissidents;
- Former members of police or military targeted for assassination;
- Social classes, such as educated elites (but not rich or poor), and
- Tribes and ethnic groups.
The US had been recognizing persecution based on gender. For example, individuals who were forced to (or afraid that they will be forced to) undergo female genital mutilation, Islamic dress code requirements, forced marriage, or domestic violence.
While the Attorney General in 2018 challenged whether domestic violence can be a particular social group, it can be argued that a woman who doesn’t want to be abused or to be considered property is also an expression of a political opinion which is a separate protected reason.
A general rule of thumb is that a group is more likely to be considered a particular social group the more unique it is in society. For example, rich and poor aren’t considered particular social groups because it’s hard to define. However, women who are rape victims of militants in their home country, or similar groups, are easier to define and can be considered a particular social group.
How to Apply for Asylum
1. Prepare your asylum application.
You must file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States. At the time of writing, there is no fee to apply for asylum, but the government is trying to change that.
If your spouse and unmarried children under 21 are in the United States, you should include them in your application at the time you file or at any time until a final decision is made on your case. After filing, you can check your case status online using the receipt number mailed to you.
2. File your application.
In order to qualify for asylum, you must file within one year of your last entry to the US. If you entered the country legally, you’ll only need to show your passport. This is called an affirmative application, which should be filed with the USCIS. However, if you entered the country without inspection, the filing process becomes complicated.
If you’ve maintained a legal visa for the entirety of your stay in the US, you’ll be able to apply for asylum past the one year deadline, but you must apply within one year of when your status expired.
If you missed the one-year deadline for application, check whether you qualify for an exception for changed circumstances in your personal life, or in conditions in the US or your home country that was material to your eligibility for asylum. This only applies if you filed within a reasonable time after the circumstances happened or after you learned about it. Some examples include:
- You were not afraid to return home when you entered the US, but you are afraid now because people like you are now being persecuted due to a change in circumstances (such as a new government).
- You became active in political or religious activities after leaving your home country, which now puts you at risk of persecution (such as marrying someone of a different religion and converting to that religion).
- You are divorced and your spouse was the primary applicant, so now you need to apply on your own.
If you missed the one year deadline there is another exception you may be qualified for. If you experienced extraordinary circumstances material to your eligibility, you’ll still qualify for asylum as long as you filed within a reasonable time after the change circumstances occurred. You must also show that you didn’t create the extraordinary circumstances through your action or inaction. Some examples include:
- You suffered a serious psychiatric or medical illness during at least part of the one-year period.
- You were legally disabled during the period .
- The ineffective assistance of your lawyer, notario, or scam artist is directly related to the delay in your filing. Make sure to document what happened, prove that you saw this person, explain your reasons for trusting them (whether for cultural or language reasons) and why you thought they were an attorney, and explain what they did or didn’t do.
3. Wait for the decision.
You’ll be called for an interview with an asylum officer who will ask you a series of questions. At the end of the interview, the officer will make a decision on your application. Note that the decision is often not released on the same day as your interview.
If you’re approved you will be granted refugee status, you can file for lawful permanent residence a year later through form I-485.
If you’re denied by USCIS, you will be placed in removal proceedings. While this may be scary for you, being put in removal proceedings gives you another opportunity to ask for asylum through a defensive application.
A defensive asylum application is filed when you are in removal proceedings. This can happen if you were put into removal proceedings while you’re in the US, or if you were caught at the border while trying to enter the US. Either way, you still have to apply within a year of your last entry to the United States.
This is a difficult time for every immigrant to the US, as it seems like the current administration is making it even harder for those seeking asylum. If you think you may qualify, please contact our office at Andres Mejer Law.
We will work with you, if you qualify. If you don’t, we can help you determine your next best steps, such as looking at the possibility of another legal status. We have often found relief for our clients when other attorneys said there was no hope. Call us to get legal assistance from an experienced immigration attorney, and start your immigration journey today!