U.S. Immigration Law – Asylum

Asylum law

Those who have suffered persecution or who fear future persecution in their home countries may apply for asylum in the United States. However, the process is more complicated than you might expect, and the tiniest detail could result in a denial of your application for asylum.

I want to help you understand whether you qualify to apply for asylum and how I can help you through the process. Here is some important information for you to know about the asylum process.  

What Is Asylum?

Asylum is a way of gaining legal residency in the United States by proving that you were subject to past persecution or would be subject to future persecution in your home country under a specific set of circumstances. You must be able to show that you have a “well-founded fear” of persecution due to your race, religion, nationality, political opinion, or membership in a particular social group.

You must be currently living in the United States and have lived here for less than 1 year to apply for asylum. If your application for asylum is granted, you can become a permanent resident of the United States and eventually apply for citizenship. You may also obtain asylee status for your spouse or children (who were under 21 when the claim was filed).

How to Apply for Asylum

Once you have entered the United States, you should speak to an immigration attorney to start the process of applying for asylum. There are two different ways to apply for asylum based on whether you have been arrested by DHS and placed in removal proceedings. The process for applying varies greatly depending on what type of asylum you are seeking.

Affirmative Asylum

If you have not been arrested by DHS and are not under threat of being sent home, you can apply for affirmative asylum.

Defensive Asylum

If you have been arrested by DHS, are under threat of removal, or you have had your application for affirmative asylum denied, you may be able to apply for defensive asylum.

Asylum Eligibility

You must meet a very narrow set of criteria to be eligible for asylum. You must meet the international definition of a refugee and not have any bars that may prevent your application from being approved.

Important Legal Terms

Immigration law is all about the details of legal terms. Here are some of the most important words you should understand when applying for asylum.

Refugee

A refugee is defined as:

“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 last habitually resided, 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.”

Only refugees are eligible to apply for asylum in the United States.

Persecution

What counts as persecution? Different courts have different definitions, including:

  • “The infliction of suffering or harm upon those who differ…in a way that is regarded as offensive.”
  • “An extreme concept, marked by the infliction of suffering or harm…in a way regarded as offensive.”
  • “Threats to life or freedom are uniformly found to be persecution. Physical abuse, even when not life-threatening, also generally constitutes persecution. Persecution does not require that an applicant establish permanent or serious injuries.”

Persecution does not include mere harassment or discrimination.

To qualify for asylum, the source of persecution must be the government, a quasi-official group, or persons or groups that the government is unwilling or unable to control, such as guerrilla forces, paramilitary groups, death squads, clans, and abusive parents or spouses.

For an asylum application, persecution may also include the cumulative effect of harms and abuses that might not individually rise to the level of persecution.

“Well-Founded Fear of Persecution”

A refugee applying for asylum must have a “well-founded fear of persecution.” What does that mean, and how do you prove it?

An asylum applicant must show a “reasonable possibility” that they will be persecuted in the future if they go back to their home country. A “reasonable possibility” of persecution may be less than a 50% chance. If the risk is being shot or tortured, a risk of only 10% may be enough.

Asylum applicants must present both subjective and objective evidence that they fear returning to their home country by:

  • Presenting specific facts with objective evidence or credible and persuasive testimony, AND
  • Showing that a reasonable person would fear persecution

An additional 4 elements an asylum applicant should show to prove a “well-founded fear of persecution” include:

  • The applicant has a belief or characteristic a persecutor seeks to overcome in others by means of punishment
  • The persecutor must be already aware or could become aware that the applicant possesses this belief or characteristic
  • The persecutor must be capable of punishing the applicant
  • The persecutor must have the inclination to punish the applicant

Past Persecution

To qualify for asylum, an applicant must show that past persecution will lead to future persecution for the same beliefs.

The burden of proof lies with the government to dispute this through establishing a lot of evidence either that conditions in the home country have changed to the extent that the applicant no longer has a well-founded fear, or by showing that by moving to another part of his or her nation the applicant could avoid persecution and that it would be reasonable to expect them to do so.

Even so, the applicant may still receive asylum if they can show good reasons for being unable or unwilling to return to their home country based on the severity of past persecution or a reasonable possibility of suffering other serious harm upon returning.

The 5 Protected Grounds for Asylum

In addition to a fear of persecution, an asylum applicant must fall into one of the 5 protected grounds for asylum, and that protected ground “was or will be at least one central reason for persecuting the applicant.”

Let’s talk more about those 5 protected grounds so you can better understand if you fall into one (or more) of the groups.

Race

According to the United Nations, the term “race” includes “all kinds of ethnic groups that are referred to as ‘races’ in common usage.” “Race” and “nationality” often overlap in asylum applications.

Religion

Religious persecution may include the prohibition of (or discrimination as a result of) public or private worship, membership in a particular religious community, or religious instruction. Applicants can’t be forced to practice their religious beliefs in private to escape persecution.

Nationality

“Nationality” includes citizenship or membership in an ethnic or linguistic group and often overlaps with race.

Political Opinion

An asylum applicant might fear or have experienced persecution based on actual or perceived political opinions. To qualify for asylum based on a political opinion, an applicant must prove that they held (or were believed to have held) a political opinion and that they had been or could be persecuted as a direct result of that political opinion.

Social Group

The hardest to define protected ground for asylum is the social group. A “social group” is generally accepted to be a group of people who share or are defined by specific characteristics like age, geographic location, class background, ethnic background, family ties, gender, or sexual orientation.

A few examples of groups found to satisfy the social group test include:

  • Homosexuals
  • Somali females
  • Christian women in Iran who did not adhere to the Islamic dress code
  • Women who have escaped involuntary servitude after being abducted and confined by the FARC in Colombia
  • Highly educated individuals
  • Former members of the national police
  • Union members

Domestic Violence and Asylum

It is difficult to prove that being a victim of domestic violence qualifies a person as being a refugee and eligible for asylum since domestic abuse usually occurs in the private realm rather than something controlled by the government.

The law is evolving rapidly in this area, but the government does occasionally recognize the validity of domestic violence-based asylum claims under a social group theory. Domestic violence victims can establish persecution based on social group, where the group is defined by how a woman’s abuser and her society perceive her role within the domestic relationship.

This is a tricky area of the law, so ask me any questions if you think you may qualify as a refugee due to domestic abuse.

Asylum Claims that Involve Children

Since children are especially vulnerable to persecution, their cases are handled somewhat more delicately than adult cases. Some differences in child cases may include:

  • A lower level of harm to be considered persecution
  • Persecution specific to children like family violence, child trafficking, forced under-age recruitment into armed conflict, child trafficking or labor, female genital circumcision, or forced or underage marriage
  • Children may not understand the reasons for their persecution and may have minimal knowledge of conditions in their home countries, yet may still qualify for asylum
  • Children may not understand or may have minimal understanding of the concepts of race, religion, nationality, political opinion, or social group but still qualify for asylum

Internal Relocation

The United States government may decide that a person could escape persecution by merely relocating within their own country, and therefore don’t qualify for asylum.

However, If the feared persecutor is the government or government-sponsored, or if the applicant has established past persecution, there is a presumption that internal relocation would not be reasonable. In that case, the government would need overwhelming evidence that internal relocation would be reasonable.

Establishing Credibility

Asylum applicants must meet a burden of proof to establish credibility by providing:

  • Documentary evidence
  • Presentation of a detailed written application
  • Oral testimony

REAL ID

The REAL ID Act of 2005 (titled “Preventing Terrorists from Obtaining Relief from Removal”) added some amendments regarding the credibility of asylum seekers and expanding the definitions of “terrorist organizations” and “terrorist activities.” Thanks to these changes, asylum applicants can trigger asylum bars even if the terrorist activity was minimal and engaged in under duress.

For this reason, it’s crucial to share with your immigration attorney all affiliations you may have had with any group that could be considered a terrorist organization.

Fraud

Fraud committed to flee your country and enter the United States may help, rather than hurt, your asylum case. However, committing fraud while seeking asylum once you’re already in the United States or failing to disclose previous fraud is a grave matter.

Marriage fraud, for example, is a federal crime that could result in fines or jail time. Other findings of fraud can make an applicant permanently ineligible for relief under the INA.

Bars to Asylum

There are 10 mandatory “bars” that render an applicant ineligible for asylum. The 10 mandatory bars are:

  • Failing to file for asylum within 1 year of entering the United States (unless you can show extraordinary or changed circumstances)
  • Being a persecutor of others on account of one of the protected grounds
  • Being “firmly resettled” in a third country
  • Being previously denied asylum
  • Being convicted of an “aggravated felony” as defined by immigration law
  • Being convicted of a “particularly serious crime”
  • Posing a danger to the security of the United States
  • Having ties to terrorist activity
  • Committing a “serious nonpolitical crime”
  • Aliens who may be removed pursuant to a bilateral or multilateral agreement to a third country unless the Attorney General finds it is in the national interest to grant asylum

More Details on some Bars to Asylum

Some of the 10 mandatory bars are further clarified or explained below.

The 1-Year Filing Deadline

Other than unaccompanied minors, all asylum seekers must submit an application within one year of their last arrival in the United States. There are only two exceptions:

  • Changed circumstances: An applicant must apply for asylum within a reasonable time after becoming aware of a change in circumstances like changes in the applicant’s country of origin, changes in U.S. law, or conversion to another religion.
  • Extraordinary circumstances: Extraordinary circumstances over which the applicant had no control, and that kept the applicant from filing for asylum within a year of entry into the United States may include: serious illness; a long period of mental or physical problems, including those caused by persecution suffered; the fact that the applicant is under age 18 and living without a parent or legal guardian; or ineffective assistance of counsel including a lawyer who failed to give notice of the one-year deadline or who filed the application within one year with mistakes that caused it to be rejected for filing.

I would be happy to answer any questions you have about proving that you have met the 1-year deadline.

Criminal History

A criminal history may affect your ability to receive asylum in the United States. Certain categories of crimes are more likely to affect your application for relief.

Being convicted of an “aggravated felony” will cause you to be ineligible for asylum and may cause other significant immigration consequences. Examples of aggravated felonies include (but are not limited to):

  • Murder, rape, sexual abuse of a minor
  • Drug trafficking or possession with the intent to sell
  • Crimes of violence with a sentence longer than 365 days
  • Crimes of theft with a sentence longer than 365 days
  • Fraud where the amount of loss to the victim exceeds $10,000
  • Certain offenses involving firearms and explosive materials
  • Alien smuggling, child pornography, trafficking in destructive devices, money laundering (over $10,000), trafficking in firearms, national defense crimes, owning or managing a prostitution business, ransom demand, revealing the identity of an undercover agent, sabotage, slavery, treason
  • Certain other crimes with a prison sentence longer than one year

Being convicted of a “particularly serious crime” will bar you from asylum and prevent you from receiving withholding of removal. Most particularly serious crimes are aggravated felonies, but not all aggravated felonies are particularly serious crimes. Occasionally, the government argues that a crime is particularly serious, even though it is not defined as an aggravated felony. Particularly serious crimes usually involve violence or the risk of violence against a person.

Conviction of a crime involving moral turpitude (CMT) may lead to a negative exercise of discretion in an asylum case. In general, a CMT is a crime that is “inherently base, vile, or depraved” or contrary to societal moral standards. Crimes that may be considered a CMT include:

  • Crimes of fraud
  • Theft crimes where the record of conviction shows intent to permanently deprive the owner of possession
  • Crimes with an intent to cause or threaten great bodily harm
  • Prostitution
  • Rape or other sex offenses

Terrorism

Legislation that was intended to prevent terrorists from gaining asylum is negatively affecting many victims of terrorism. Laws enacted since the September 11, 2001 terrorist attacks have dramatically broadened the class of people who are barred from asylum for terrorism-related grounds.

Terrorist organizations are now defined as a “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” terrorist activities.

Terrorist activity includes any “threat, attempt, or conspiracy” to use “any…explosive, firearm, or other weapon or dangerous device (other than for mere personal or monetary gain), with intent to endanger…the safety of one or more individuals or to cause substantial damage to property” which is “unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State).

Terrorist activity also includes committing, inciting, preparing, and planning terrorist activities, soliciting funds, soliciting individuals, and providing material support for a “terrorist organization” or terrorist activity, even under duress.

One problem with this definition is that pro-democracy groups who struggle against a dictatorship can be considered terrorist groups since the actions they take against the regime oppressing them are against the law in the place where they are taking action.

Additionally, duress, infancy, self-defense, and mental incapacity do not excuse material support. That means being held hostage in your home while members of a guerilla group occupied the house for the night could trigger the bar. Paying a fee to keep terrorists from killing your family could trigger the bar.

It is challenging, but it is possible to get an exception for certain terrorist activities. I can give you more details on your specific case during a consultation.

Firm Resettlement

The final bar to asylum that we’ll discuss in detail is “firm resettlement,” which occurs when an applicant, prior to arrival in the U.S., entered another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.

This bar does not apply if your entry into the third country was a necessary consequence of your flight from persecution, if you remained in that country only as long as needed to arrange onward travel, or if you did not establish significant ties in that country. Likewise, if the conditions of your residency in the third country were substantially and consciously restricted by the authority of the country of refuge, then the applicant was not, in fact, resettled. Firm resettlement does not apply to a person who settled in a third country but has a well-founded fear of remaining in that country.

It is up to the government to prove that you have been firmly resettled elsewhere.

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A person (Asylee) who has been granted an asylum status in the United States, including his or her spouse and children, can apply for a Green Card 1 year after obtaining the asylum status.

Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (248) 630-3239.  I accept clients from across the U.S. and around the world.  My law office is conveniently located in Troy, Michigan for in-person meetings.  For phone consultation, you can reach me from any part of the United States or abroad.