A foreign national who has a “well-founded fear” of persecution in his/her home country on account of race, religion, nationality, membership in a particular social group, or political opinion may be eligible for the relief of asylum. To demonstrate “well-founded fear,” the asylum applicant must show that 1) s/he has such a fear of persecution in his or her country of nationality (or if stateless, country of last habitual residence); 2) there is a reasonable possibility of suffering such persecution if s/he were to return to that country; and 3) s/he is unable or unwilling to return to, or avail him or herself of the protection of that country. An asylum applicant may establish well-founded fear by showing that a reasonable person in his or her circumstances would fear persecution.
There are two different ways to apply for asylum, affirmatively or defensively. One can affirmatively apply for asylum if s/he is not already in removal proceedings by filing a Form I-589 application with the U.S. Citizenship and Immigration Services (“USCIS”). After reviewing the application, an Asylum Officer would interview the applicant in a non-adversarial environment. If the Asylum Officer approves the application, asylum would be granted. If denied, the case would be referred to Immigration Court for removal (or deportation) proceedings where the asylum applicant could assert asylum as a form of relief from removal.
If an individual has already been placed in removal proceedings, s/he may assert asylum defensively as a basis for relief from removal. If the Immigration Court determines the individual to be eligible for asylum, it would be granted. If the Court denied the asylum claim, the individual could appeal the decision to the Board of Immigration Appeals (“BIA”).
To be eligible for asylum, the individual must apply within one year of entering the U.S. There are two exceptions to the one-year filing requirement: if conditions in the home country have changed such that they materially affect the applicant’s eligibility for asylum or if extraordinary circumstances caused the delay in filing. There are other bars to asylum including if an applicant is determined to have firmly resettled in another country prior to arriving in the U.S. or if the applicant can be removed to a safe third country.
If an applicant is found to be ineligible for asylum, there are alternate forms of relief that may be available in removal proceedings such as withholding of removal and protection under the Convention Against Torture.
If granted asylum, asylees may apply for permanent residence one year after they are granted asylum and may bring their spouses and unmarried minor children to the United States as derivative asylees within two years of the grant of asylum (as long as their familial relationship existed at the time the principal applicant obtained asylum). They may also work in the United States and travel outside of the United States (upon securing a Refugee Travel Document from USCIS). Asylees are also eligible for certain social services provided by the Office of Refugee Resettlement, U.S. Department of Health and Human Services.
Refugees are like asylees in that they qualify for their status in the United States based on “well-founded fear” of persecution in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Refugees differ from asylees in that they were granted refugee status abroad and entered the United States in that status, whereas asylees applied for and were granted asylum within the United States. Like asylees, refugees are eligible to (and encouraged to) apply for permanent residence after one year of residing in the United States in refugee status.