“Asylum” refers to the protection or refuge from harm granted by the U.S. government to those facing “persecution” (actual harm or the threat of it) in their home countries. Obtaining asylum in the United States allows a person and his or her family to live and work here and ultimately to become permanent residents (green card holders.)

To qualify for asylum under U.S. law the applicant must show that he or she has been persecuted in the past or fears persecution in the future due to his or her race, religion, nationality, membership in a particular social group, and/or political opinion. Persecution or its threat must come from the applicant’s home country government itself or from an individual or group that the government is unable or unwilling to control.

Individuals can seek asylum from outside of the United States and such cases are processed through a U.S. government refugee program. Those granted asylum from abroad are referred to as refugees. Those granted asylum in the U.S. through applications filed with INS’s Asylum Offices or with an Immigration Judge in court proceedings are referred to as asylees. Applicants granted asylum from either inside or outside the United States will not be required to return to their home countries; however, the status of refugee or asylee may be terminated under very limited circumstances usually involving criminal convictions.

Grounds of Ineligibility

An application for asylum must be filed within one year of entry into the United States. If more than one year has passed since the applicant has entered the U.S., the applicant may still qualify if he or she can demonstrate a justifiable reason for the late filing or if circumstances in the applicant’s home country change causing the applicant to form a reasonable fear of persecution. An applicant may be ineligible for asylum for other reasons such as criminal convictions, past persecution of others, or firm resettlement in a third country before arriving in the U.S.

Other Forms of Safe Haven In the U.S.

Even if an applicant is ineligible for asylum, he or she may still be granted a limited right to remain in the United States called withholding of removal. Bars to asylum, such as the one year filing deadline and certain criminal convictions, may not make a person ineligible for withholding of removal. An applicant for withholding must establish that the persecution feared is probable, which means more likely to happen than not. Similarly, applicants who fear torture by their governments may apply for protection under the United Nations Convention Against Torture. Applicants who win this type of case may not be returned to the nation where they would face torture.

Asylum Application Procedures

Individuals inside the United States can apply for asylum with the INS Asylum Offices. The asylum application itself consists of a questionnaire form and other documents related to the applicant’s identity and the facts of the case. Providing individual evidence and documents regarding relevant home country conditions adds to the strength of the case.

Individuals who file applications with the INS Asylum Office will be interviewed by an INS officer within a few weeks of the submission of the application. An attorney may represent the applicant at the interview in which the asylum officer reviews the application and asks questions about the case. Following an interview, the asylum officer may make one of three possible decisions: approve the application, refer the application to the immigration judge for further consideration (this outcome places the applicant in a removal proceeding which may result in the order of the individual’s departure from the U.S. if the application for asylum is denied by the judge and if there is no other legal basis for the applicant to remain here), or deny the application without a referral to the immigration judge (usually done where the applicant holds a valid nonimmigrant status, such as student or professional worker). Individuals who have been placed in removal hearings can apply for asylum in the first instance with the immigration judge.

The Benefits of an Asylum Grant

Applicants granted asylum simultaneously obtain the right to work in the United States. However, an asylum applicant may also obtain permission to work in the United States when the application has been pending more than 180 days after filing. Generally, however, cases are decided before the 180th day.

Refugees and asylees may obtain refugee or asylee status for their spouses and minor children, whether they are residing in or out of the United States. Filing deadlines for certain applications to bring family members exist. Additionally, refugees, asylees and their families qualify to become permanent residents and ultimately U.S. citizens.

Those granted withholding of removal or protection under the Convention Against Torture are not eligible to bring their families or to confer any benefit on their families. Nor are they eligible to apply for U.S. permanent residence following grants of these types of protection.

Should I File An Application for Asylum?

The risk of being placed in immigration court proceedings and receiving an order of departure or removal from the U.S. once an asylum application is denied by the INS makes the decision to apply for asylum a very important one. Key eligibility requirements for asylum involve difficult and evolving legal issues. Because the stakes are so high and the procedures and the law are complicated, legal advice should be sought before applying for asylum and in the preparation and presentation of the case.

Simmons and Ungar has successfully litigated landmark cases in the field of asylum law. We have represented clients in asylum cases from countries around the world. We are ready and able to serve you.