Individuals, along with their dependents, may only apply for asylum if they are currently in the United States, and have entered a U.S. port within less than one year. The success of their application will depend on whether they can prove a well-founded fear of persecution if they return to their home country. The well-founded fear must be based on one or more of the following protected grounds:
- Particular Social Group (or “PSG”)
- Political opinion
A PSG is generally understood as an identifiable group of people viewed by government as a threat. It is also often described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot, or should not be expected to change it.
Qualifying for Asylum
To be granted asylum, you must demonstrate “refugee” status, and also show that you are not barred from asylum for any of the reasons listed in US immigration laws. You may qualify for asylum if you can establish that you are a refugee and are not subject to any asylum bars. Bars to asylum include:
- Persecution of others
- Conviction of certain types of crimes in the United States
- Commission of serious, non-political crimes outside of the United States
- Being a danger to national security
- Terrorist activity
- Firmly resettling in another country outside of your home country
- Having a safe third country where you could live
- Prior asylum denial (except in changed circumstances), and
- Filing for asylum more than one year after arriving in the U.S. (with limited exceptions)
According to the UN Convention Relating to the Status of Refugees, a refugee is someone who has been forced to flee his or her country because he or she has suffered harm and/or has a well-founded fear of future harm because of who they are. This may include harm that is based upon one’s race, religion, nationality, political opinion, or some other characteristic about oneself that cannot be changed, such as one’s sexuality.
Asylum seekers who are represented by attorneys have significantly improved chances of success. It is important to consult an immigration attorney to determine whether you qualify meet the refugee status, and will be eligible to apply for asylum.
Affirmative and Defensive Asylum Applications
There are two ways to apply for asylum while in the United States: affirmatively or defensively.
In defensive cases, an asylum seeker has been placed in removal proceedings before an Immigration Judge with the Executive Office for Immigration Review, which is a part of the Department of Justice. They may apply for asylum at their removal hearing in front of an Immigration Judge. An asylum seeker in removal proceedings may have been referred to Immigration Court either upon applying for admission at a U.S. port of entry or at some time after the individual has entered the country.
In affirmative cases, where an asylum seeker is inside the United States and has not been placed in removal proceedings, he or she may file an application with U.S. Citizenship and Immigration Services, regardless of his or her legal status in the United States. However, if the asylum seeker does not have a valid immigration status, and USCIS does not grant the asylum application, USCIS will place the applicant in removal proceedings and an Immigration Judge will consider the application anew. The Immigration Judge may also consider the applicant for relief that the asylum office has no jurisdiction to grant, such as withholding of removal and protection under the Convention Against Torture.
Family Status While Seeking Asylum
Asylum seekers are not permitted to bring family members to the US until after they receive asylum. If you are granted asylum, you may file a petition to bring qualifying children and your spouse to the United States.
Our immigration attorneys know how to navigate the asylum process and are standing by to help you better understand your legal rights and apply for asylum today.