In order to be eligible for asylum in the United States, an applicant must qualify as a refugee under the Immigration and Nationality Act (INA). The INA defines a refugee as someone who has left his or her native homeland due to persecution or fear of persecution on the basis of race, religion, nationality, or membership in a particular social or political group. Asylum status is available for a certain category of people who meet the INA definition of a refugee and are already in the United States or are seeking admission at a port of entry.
Definition of “Persecution”
While the INA has not created a specific definition for the word “persecution,” courts have typically held that a “threat to life or freedom” on the basis of race, religion, nationally, political affiliation, or membership is a particular group is “always persecution.” The persecution must be committed by the individual’s native government or political groups such as guerrillas, tribes, vigilantes, or others that the government has no ability to control.
In most instances, persecution is physical, but it can also be emotional or psychological. Establishing persecution is highly fact-intensive, and individuals will need to demonstrate that what they suffered should be viewed as persecution. This conduct encompasses a wide variety of acts and harms that must be examined on a case-by-case basis.
There are certain types of harms, however, that have been recognized as forms of persecution: physical violence, torture, rape, genocide, slavery, sex trading, unlawful detention, threats of serious harm, and other human rights violations.
Burden of Proof
The applicant bears the burden of proof when it comes to establishing that he or she is indeed a refugee under the definition. Part of this process requires the applicant testifying under oath as to the truth of his or her application. The applicant must also present corroborative testimony, documentary evidence, and anything else that would support his or her claims. Testimony can be sufficient on its own if it is deemed to be credible.
Asylum Decisions are Discretionary
Even if an applicant meets all of the criteria required to be granted asylum, it is within the adjudicator’s rights to deny the application. It is thus important to include as much evidence and detail as possible in one’s application to demonstrate that you deserve asylum. Criminal convictions and other factors can influence an adjudicator’s decision, so it is important to address the circumstances of any conviction or other unfavorable event.
Seeking Asylum From Within the U.S.
If you are already in the U.S. and are not in removal or deportation proceeding, the process by which you can seek asylum is relatively quick. Under INA guidelines, the U.S Citizenship and Immigration Services (USCIS) should work within the following timeframe. Within 21 days of receiving an applicant’s completed asylum application, USCIS should send the applicant a receipt notice confirming the application was received, a biometrics appointment notice for the applicant and children over 14 years of age, and an interview notice including the date, time, and location. Within 43 days of the application being received, the applicant should be interviewed at a U.S. asylum office. USCIS will issue a decision within 60 days after receiving the application and conducting the interview. You can check the status of your case online at the USCIS Case Status website, which can help you make sure that you have met all of the deadlines and requirements.
Seeking Asylum From Outside the U.S.
To apply for refugee status, an individual must go to the U.S. Embassy, a U.S. Consulate, or the UN High Commissioner for Refugees (UNHCR) office in his or her own country. At that point, the individual will need to submit documents detailing his or her situation, including a promise by a U.S. sponsor who supports the relocation effort. Once the application is submitted, the individual will meet with an overseas asylum officer who will assess the merits of the case. If approved, the individual will be given a visa through which he or she can enter the United States. If the application is denied, there is no way of appealing the decision.
The Migrant Protection Protocols
The Department of Homeland Security started implementing the Migrant Protection Protocols in early 2019. Also known as the Wait in Mexico policy, the protocols require immigration officers to send asylum seekers at the southern border back to Mexico while they wait for an immigration judge to review their asylum request. The protocols apply both to foreign nationals who are seeking admission at a port of entry on the U.S.-Mexico border and to foreign nationals who enter the U.S. illegally and express a fear of returning home when they are caught by immigration enforcement. The Mexican government will give a one-year humanitarian visa to these asylum seekers, and they must return to a port of entry within 45 days for their hearing.
If Mexico is a country to which a non-Mexican asylum seeker fears returning, they must clearly explain this fact to the immigration officer who encounters them. To avoid returning to Mexico, they must show that it is more likely than not that they will be persecuted or tortured there. These asylum seekers will not be allowed to get representation from an attorney at this stage.
The Migrant Protection Protocols replace the credible fear interview process. This was an initial screening interview conducted by an asylum officer in either of the situations above. A foreign national who convinced the asylum officer that they credibly feared returning home would get a hearing date with a judge and potentially get an immigration bond that would allow them to be released until their case was heard.