Seeking Asylum Relief Text Size:

One form of protection for aliens provided by the Immigration and Nationality Act (INA) is asylum. An application for asylum involves two steps, first showing that you have a well-founded fear of persecution in your home country, and second, an exercise of discretion by the US government to grant asylum. Other options for protection include withholding of removal and relief offered under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Applying for Asylum

The US Asylum Program offers protection for people from other countries who are already in the US, or who are seeking entry at a US port of entry. Asylum is open to you, regardless of your immigration status or which country you're from. There are seven steps in the asylum process:

1. Arrive in the US
2. File Form I-589, Application for Asylum and Withholding of Removal within one year of your last arrival in the US
3. Receive your notice for fingerprinting at an Application Support Center and complete the background and security check process
4. Receive notice for your asylum interview. You can expect your notice within 3 weeks of mailing your application form
5. Attend your asylum interview. Usually, an Asylum Officer will interview you within 43 days of your filing date. The interview will last about an hour, and you can bring your lawyer and witnesses to support your application
6. The Asylum Officer makes a decision on your application, and a Supervisory Asylum Officer reviews the decision to make sure it complies with the law. Additional review by Asylum Division Headquarter staff is possible
7. Pick up your decision at the asylum office, usually two weeks after your interview

Eligibility for Asylum

You're eligible for a grant of asylum under INA § 208 if you qualify as a refugee. A refugee is a person who is outside the country of his nationality, or if someone doesn't have a nationality, he's outside the country where he last lived and can't or won't seek the protection of that country due to persecution or a well-founded fear of it. The persecution or fear of persecution must be on account of:

• Race
• Religion
• Nationality
• Membership in a particular social group
• Political opinion
• Forced abortion or sterilization, refusal to undergo such procedures, or well-founded fear of being subjected to such procedures

Showing Well-Founded Fear

Establishing that you have a well-founded fear of persecution has subjective and objective elements. The subjective element means that your fear is genuine. The objective element means that a reasonable person in the same situation would fear persecution. While your testimony can satisfy the subjective element, showing the objective element is more difficult.

Under INA § 208(b)(1)(B), as an applicant, you have the burden to show that you're a refugee. You must show that your race, religion, nationality, social group membership or political opinion is a central reason for your persecution. Your testimony must be credible, persuasive and refer to specific acts showing you're a refugee. If you can get corroborating evidence to support your application, do so. Supporting evidence can be required unless you don't have it and it isn't reasonable for you to obtain it. Your demeanor and the accuracy of your statements count. It's more likely that your application will be denied if your claims aren't consistent with the US State Department's Country Reports and Country Profiles for your home country.

Defining Persecution

Persecution isn't defined by the INA or the related regulations. The UNHCR Handbook, produced by the United Nations, defines persecution to always include threats to life or freedom based on race, religion, nationality, political opinion or social group membership, and serious human rights violations. US Immigration and Naturalization manuals and court decisions add to the definition. Conduct has to be more than harassment. However, physical harm isn't required. Persecution can be in the form of witnessing an event, like a death squad shooting someone, or questioning that goes well beyond normal government investigation. A situation, as a whole, can show persecution.

Discrimination or Persecution?

Typically, discrimination or unfair treatment isn't persecution. For discrimination to rise to the level of persecution, you must show that it caused extreme restrictions on important rights. You can show that several discriminatory measures added up to persecution. Some types of treatment, if imposed because of one of the five categories mentioned above, can support a finding of persecution. These include:

• Arbitrary interference with your privacy, family, home or communicating with others
• Exclusion from schools for higher education
• Enforced social or civil inactivity
• Passport denial
• Constant surveillance
• Pressure to be an informer

Economic Hardship

Economic hardship alone doesn't qualify you as a refugee. At the same time, having better economic opportunities in the US than in your home country won't disqualify you from asylum. There can be a political connection to economic hardship. Economic hardship is a factor considered when economic measures are imposed on people due to their race, religion, or political memberships. This factor has more weight when physical violence and threats are present.

Prosecution and Persecution

Typically, criminal prosecution in your home country isn't persecution. There are exceptions to this general rule. If a criminal prosecution is for committing acts protected under international human rights law, such as "peaceful political expression," then it might amount to persecution. If peaceful means of protest aren't available, then prosecution may constitute persecution.

Intent and Role of Persecutors

Regardless of the intent of persecutors, their actions can be persecution. Your application for asylum needs to show that the persecutor was motivated by one of the five grounds listed in the INA.

In most situations, the government of your home country, or its agents or officials, are the persecutors. It's also common for a persecutor to be an independent group that the government can't control. Examples include Salvadoran death squads or the Provisional Irish Republican Army. You can also show that a single person is a persecutor, if your home country's government won't or can't control him. Persecution often takes place when there is civil conflict, but anarchy, civil war or mob violence alone might not support an asylum claim.

Questions for Your Attorney

• I want to apply for asylum, but I've been in the US for more than a year; are there exceptions to that rule?
• How are applications for families handled? Do my spouse and I both have to prove that we're eligible for asylum?
• What's my status for working if my application is accepted?
• What are the next steps once asylum is granted if I want to seek US citizenship?

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