It is worth noting that simply fearing returning to an immigrant's home country is insufficient to qualify for Asylum. However, an immigrant who experienced persecution in their home country and has a well-founded fear of future persecution may qualify for Asylum. This persecution must be based on one of five categories provided for in U.S. immigration law which are: race, religion, nationality, political opinion, or membership in a particular social group.
Asylum offers protection for foreign nationals in the U.S. who have suffered persecution or fear they will suffer persecution due to race, religion, nationality, membership in a particular social group, or political opinion. Applicants must apply within one year of their arrival in the U.S.
Notably, there is a common misconception between refugees and asylees.
Asylum
Asylum is granted to individuals already in the U.S. or at a port of entry who can prove they fear persecution in their home country based on race, religion, nationality, political opinion, or membership in a particular social group. To apply for asylum, one must file Form I-589, (Application for Asylum and for Withholding of Removal), within one year of their arrival. In sum, Asylees are those granted asylum status while already in the U.S. or at a port of entry.
Refugees
Refugees are persons outside the U.S. and outside their home country who are unable or unwilling to return due to a well-founded fear of persecution on similar grounds. The process for Refugees is primarily handled outside the U.S., with the U.N. High Commissioner for Refugees (UNHCR) often initiating the process.
Acoordingly, the primary difference lies in where the protection is sought: asylees apply within the U.S., while refugees apply from abroad.
U.S. immigration laws allow for two types of Asylum applications (Affirmative & Defensive Asylum).
Affirmative Asylum
An individual in the United States who is not in removal proceedings and who qualifies for Asylum based on a well-founded fear of future persecution based on their race, religion, nationality, political opinion, or membership in a particular social group may apply for Asylum directly through USCIS.
Defensive Asylum
Immigrants in the U.S. who meet the same requirements above but who are in removal (deportation) proceedings may apply for Asylum through the Immigration Court.
Contact Cruise Law Group to schedule a free consultation and to determine your legal options. You can expedite this process by completing our Immigration Intake Form or Call CLG at 888-332-3136
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Qualifying for Asylum
To qualify for asylum, an individual must meet the definition of a refugee as per the Immigration and Nationality Act. This means demonstrating a well-founded fear of persecution based on one or more of the following grounds:
1. Race: (Persecution or fear of persecution due to one's race.)
2. Religion: (Targeted for one's religious beliefs or practices. Nationality: Harm or threats based on nationality.)
3. Membership in a Particular Social Group: (Facing dangers because of association with a specific group of people, often characterized by common, immutable traits or shared beliefs that a member either cannot change or should not be required to change. This can include, but is not limited to, certain family relationships, LGBTQ+ individuals, or members of certain social or professional groups.)
4. Political Opinion: (Persecution due to political beliefs or activities, whether actual or imputed by the persecutor.)
5. Nationality: (Harm or threats based on nationality.)
NOTE
With limited exceptions, an individual must apply for Asylum either within one year of last U.S. entry or one year after expiration of lawful U.S. status. Additionally, many applicants face tremendous difficulties showing a well founded fear and to link that persecution with their race, religion, nationality, political opinion, or membership in a particular social group. Additionally, Asylum laws change frequently, for instance, membership in a particular social group have been interpreted to include victims feeling domestic violence (recently re-added have a prior recission).
Application Process
1. Filing the Application: Applicants must file Form I-589, Application for Asylum and for Withholding of Removal, within one year of their arrival in the U.S. Exceptions to the one-year deadline include changes in conditions in the applicant's home country or personal circumstances, and extraordinary circumstances related to delays in filing.
Evidence Submission: Supporting evidence is crucial and can include personal affidavits detailing the persecution, country condition reports, news articles, medical records of injuries due to persecution, and any relevant legal documents. Credibility is key, so detailed, consistent, and honest accounts are vital. Interview: After filing the application, the applicant will be scheduled for an interview with an asylum officer. The interview is a critical component where the applicant will have the opportunity to tell their story in detail.
CONCLUSION
Legal representation is not required but is highly recommended to ensure that the applicant's case is presented effectively. Effective preparation and submission can improve the chances of approval. Conversley, insufficiently prepared applications can lead to denials and referral to immigration court for defensive asylum processing. If referred to court, the applicant has another chance to argue their case before an immigration judge. Asylum law is extremely complex and it is therefore essential that potential applicants consult a qualified, competent and licensed attorney to review your current immigration status and identify appropriate steps and strategies for applying.