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Asylum or Applying for Political Asylum in the United States

What is Asylum?

Asylum is a legal protection, special immigration status and permission to stay in the USA given to foreign nationals in the United States who are afraid to return to their home country because of fear of persecution or torture. Under the International treaties and USA Immigration laws, asylum can be granted to people who are already in the United States and who are unable or unwilling to return to their home country because of the past persecution or a well-founded fear of future persecution on account of race, nationality, religion, membership in a particular social group or political opinion. A person who was granted asylum in the United States (“Asylee”) can apply for lawful permanent resident status (“Green Card”) after having been physically present and living in the U.S. for a period of one year, following the date the asylum status was granted. A person who was granted asylum can help his immediate family members in obtaining an asylum status in the USA (wife, husband, dependent children under 21). After an Asylee becomes a lawful permanent resident of the USA, he will need to accumulate sufficient residence and show a good moral character in order to apply to become a USA citizen.

How to apply for Asylum?

Any individual seeking asylum in the United States can file an asylum application regardless of their country of origin. Prior legal status or lawful entry to the USA is not a requirement for application for asylum. There are no yearly quotas on the number of individuals who may be granted asylum each year (with the exception of individuals whose claims are based solely on persecution for resistance to coercive population control measures). It is extremely important to remember that you have to apply for asylum within the one-year period of arrival in the USA. If one-year deadline is missed, you will have to prove that you missed the deadline because of changed or exceptional circumstances.

A person can be granted asylum in the discretion of the Attorney General if he or she can prove that he qualifies as a “Refugee”. Some people are granted “refugee” status by American embassies or consulates abroad before they enter the United States, and they do not have to apply for asylum. Others may need to apply for asylum after they came to the USA on some other visa (student, visitor, work, etc) or even without a visa.

Law defines “Refugee” as a person who is unable or unwilling to return to his native country because of past persecution or a well-founded fear of future persecution on account of one of five specified characteristics. An applicant for asylum can be granted asylum if he has proved that he has suffered past persecution and/or has a well-founded fear of future persecution on account of one of the enumerated protected grounds (race, nationality, religion, membership in a particular social group, or political opinion). It is not enough to show that someone harmed you back in your home country. The harm that you suffered or are afraid of must be connected to one of five enumerated grounds for asylum.

Sometimes, a person can be granted so called “discretionary asylum”, in discretion of the Immigration Judge, because he has suffered serious harm in his native country, he has been a person of “good moral character”, as required by USA immigration law, he has not violated the laws of the United States, and he would suffer harm if he returned to his home country. Please keep in mind that discretionary grant of asylum is very rare, and it’s absolutely in the discretion of the Immigration Judge.

Additionally, any foreigner in removal proceedings in Immigration Court (in deportation) can apply for Withholding of Removal as well as protection under Convention Against Torture (CAT), if appropriate. Under the immigration laws, a person can be granted Withholding of Removal and allowed to remain in the USA if his or her life would be threatened if they were to return back to their home country. Please keep in mind that withholding of removal is not the same as asylum, because it allows only for a temporary stay in the USA (could be indefinite), and does not allow a person to become a lawful permanent resident and a USA citizen in the future.

The government can try to persuade the Immigration Judge to deny an application for asylum on the grounds that an applicant did not actually suffer harm or persecution; has no well-founded fear of future persecution; there was a fundamental change in circumstances; an applicant could avoid persecution by easily relocating to the other locality within his home country or to the safe third country; an applicant was firmly resettled in some other safe country; an applicant is not eligible for asylum because he committed a particularly serious crime or aggravated felony; an applicant persecuted others back in his home country; etc.

It’s very important to have a legal assistance of a qualified immigration attorney early on in the process of applying for Asylum. You can apply without a lawyer, but it’s advisable to have an attorney or legal representative. Please keep in mind that national asylum denial rate is approximately 60% to 70%. It varies greatly depending on the Asylum Office and Immigration Judge. The national asylum approval rate is approximately 30% to 40%, which means that only 3-4 people out of 10 are granted asylum. It’s important to improve your chances from the beginning.

If you would like to ask any case-specific questions or schedule a confidential legal consultation, please email us at Attorney@law-visa-usa.com . After that, we can schedule the best time for telephone consultation.