Asylum Overview
Asylum Resources
Some nations offer political asylum to individuals who face certain types of persecution in their country of origin or residence. Such offers include the right to enter and live within the country offering the asylum so that the refugee may escape further persecution. In the United States, international agreements between nations (or conventions) and federal laws govern who may gain asylum, the grounds for seeking asylum, and the process for becoming a U.S. citizen.
International Law
The primary international agreement governing asylum is the 1951 Convention Relating to the Status of Refugees, which originally protected European refugees after World War II. The Convention was modified and expanded by the 1967 Protocol Relating to the Status of Refugees, though for the Protocol to be effective, nations must have signed it as well. 145 nations have signed either the Convention, its Prototcol, or both, which sets forth the duties of nations that grant asylum to individuals, and the rights of people who have been granted asylum. Most importantly, the Convention defines which individuals are refugees and which are not, such as war criminals.
Article 1 of the Convention defines a refugee as
"A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution."
U.S. Law
The U.S. agreed to be bound by the 1951 Convention and its 1967 Protocol and the U.S. attorney general has the authority to grant asylum to persons with a well-founded fear of persecution, defined in federal law. The right to enact laws governing asylum is reserved for the federal government, and U.S. states may not do so.
Congress enacted the Refugee Act of 1980, which includes the definition for refugee embodied in the Convention so that applied specifically within the U.S. This Act also created the Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services, which helps refugees adjust to life in America.
The Immigration and Nationality Act (INA), a federal law, governs the process for asylum claims and specifies how many refugees will be granted asylum in the U.S. each year.
The INA defines refugee as "any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
Applications for asylum are evaluated and administered by a federal agency, U.S. Citizenship and Immigration Services (USCIS), which has the power to make eligibility rules and procedures for individuals seeking asylum. Those rules are part of the Code of Federal Regulations and may be found at 8 CFR § 208. Previously decided asylum cases also govern which individuals may be granted asylum protection.
Individuals may apply for asylum and resettlement in the U.S. at a U.S. embassy in another country, or, if the individual seeks to enter the U.S. and obtain asylum, then at the place of U.S. entry, such as an airport, where immigration officials will interview him or her. If a person is already in the U.S., he or she may apply for asylum, even if in the U.S. illegally, but the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires that person apply for asylum within one year of arrival in the U.S. unless he or she can establish changed or exceptional circumstances caused the delay in application.
Previously, persons granted asylum in the U.S. still had to wait a long time to obtain a green card, or receive lawful permanent resident (LPR) status, because of a limit on the number issued each year. But the REAL ID Act of 2005 abolished this limit and a refugee who has continuously lived in the U.S. for more than one year, with that immigration classification, now becomes a lawful permanent resident immediately after being formally granted asylum.
A person seeking asylum in the U.S. may either file a petition with the USCIS or, if the person has already been placed in removal, or deportation, proceedings, will have his or her case heard by a federal immigration judge. There are a number of procedural requirements that asylum seekers must meet, and even if a person meets the requirements for asylum, some circumstances will prevent it from being granted, such as if the individual has committed a serious crime as defined by the INA.