Asylum in the USA

Comparing Asylum and Refugee Status

U.S. immigration law includes protections for “asylees” and “refugees.”  Before continuing, it is important to understand the similarities and differences between asylee and refugee status.

The main difference between asylum and refugee status is how the applications are filed.  Asylum applications are filed by individuals within the United States.  Refugee applications are made by individuals who are outside the United States.

However, despite the differences in applying for asylum status and applying for refugee status, an individual must meet the statutory definition of “refugee” in either case.  This means that the asylum seeker must establish that he or she was subject to persecution or violence or has a reasonable fear of being subject to persecution or violence on the basis of one of the statutorily specified grounds.

Who is Eligible to Apply for Asylum?

Under statute, any alien who is physically present in the United States, or who arrives in the United States, may apply for asylum in accord with the rules for asylum applications.  An alien may apply for asylum regardless of his or her immigration status (or lack thereof).  The spouse and/or child(ren) may be eligible  for derivative status.

However, there are three bars to applying for asylum.

First, the safe third country bar applies to individuals with certain connections to Canada.  In general, an individual who initially arrives in Canada prior to then arriving in the United States must apply for asylum in Canada.  The same applies in most cases in the reverse.  The U.S. immigration authorities may make exceptions on a case-by-case basis.  This bar does not apply to unaccompanied alien children.

Second, and perhaps most importantly, an individual must apply for asylum within one year after the date of his or her arrival in the United States.  Otherwise, the application will be considered “time-barred.”  There is an exception to the “time bar.”  An individual may seek to establish that, while he or she would not have qualified for asylum within one year of arrival in the United States, changed circumstances that would materially relate to his or her asylum application attach.  An asylum seeker may also seek an exception by establishing “extraordinary circumstances” that prevented him or her from applying for asylum within the time limit.  This bar does not apply to unaccompanied alien children.

Third, individuals who previously applied for asylum and had the previous application denied are barred from re-applying for asylum.  However, there is a changed circumstances exception to this bar if the applicant can establish that the changed circumstances would materially relate to the subsequent asylum application. 

Affirmative Asylum vs Defensive Asylum

There are two types of ways to apply for asylum:  affirmative and defensive.

An individual who makes an affirmative application for asylum does so by filing an application outside of the context of removal proceedings.  The applicant will be scheduled for an asylum interview after filing the application.  If asylum status is denied, the applicant may appeal.

An individual may also apply for asylum defensively.  This occurs if the individual is seeking to defend him or herself in removal proceedings.  Being granted asylum will prevent an alien from being removed.  It is important to note that there are special procedures for individuals who are subject to expedited or administrative removal instead of regular removal proceedings in immigration court.  In this context, the individual’s application for asylum will also be considered for withholding of removal and protection under the Convention Against Torture, two lesser forms of relief.  An immigration judge will consider the application for asylum in the context of removal proceedings.

Definition of a “Refugee”

Although U.S. asylum is different than refugee status, an individual must meet the statutory definition of “refugee” in order to qualify for asylum.

First, the individual must be outside the country of his or her nationality or, in the case of an individual who lacks nationality, the country in which he or she last habitually resided.  The individual must be unable or unwilling to return to his or her country of nationality or last habitual residence, and must be unwilling to avail him or herself to the protection of that country, on account of persecution or a well-founded fear of persecution on one of the five following grounds:  (1) race; (2) religion; (3); nationality; (4) membership in a particular social group; or (5) political opinion.

It is crucial to understand the five grounds that evidence of persecution or a well-founded fear of persecution may be based in the U.S. asylum context.  Asylum in the United States is not a catch-all benefit for an individual seeking refuge from any set of undesirable conditions in his or her home country.  Rather, it is designed to protect individuals who have either been persecuted or who have a well-founded fear of persecution based on specified grounds.  Furthermore, the applicant must establish that the country in which he or she was persecuted or from which he or she has a well-founded fear of persecution is either unwilling or unable to protect him or her from persecution.  The applicant must also show either that the persecutor is the government of his or her home country or that the persecutor is a group or groups that the government is unwilling or unable to control. 

Bars to Eligibility for Asylum

Even if an individual is not barred from filing an application for asylum, he or she may be barred from being granted asylum.  The bars to asylum apply even to individuals who would otherwise meet the statutory definition of “refugee.”  There are six grounds that can lead to the mandatory denial of an asylum application.

First, if the alien persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion, he or she is ineligible for asylum.  Simply put, an individual who persecutes others on one of the five protected grounds cannot win asylum relief for fear of persecution on those same grounds.

Second, an alien who was convicted by a final judgment of a “particularly serious crime” is ineligible for asylum.  Under statute, a conviction for an immigration aggravated felony constitutes a “particularly serious crime.”  However, the aggravated felony provision does not apply as a matter of course to asylum applications filed before November 29, 1990.  For asylum applications filed before April 1, 1997, the conviction for the particularly serious crime must have occurred in the United States.  For applications after, convictions both inside or outside of the United States trigger the bar.

Third, if there are serious reasons for believing that an asylum applicant committed a “serious nonpolitical crime outside the United States” prior to arriving in the United States, he or she is ineligible for asylum.  The standard for “serious nonpolitical crime” is less serious than a “particularly serious crime.”  An applicant may seek to establish that his or her “crime” abroad was political in nature.  However, offenses that are “political” in nature may still be deemed to constitute the bar depending on the facts of the offense.

Fourth, an applicant may be barred from asylum if he or she is deemed to be a “danger to the security of the United States.”

Finally, individuals who are inadmissible to the United States based on terrorism-related inadmissibility grounds (TRIG) are subject to a mandatory bar to eligibility for asylum.

The final bar to asylum eligibility is called the “firm resettlement bar.”  If the individual is firmly resettled in another country prior to arriving in the United States, the asylum application must be denied.  This generally applies in cases where the individual has established significant ties to a third country or has received an offer of permanent residence from that country.  The U.S. Government bears the burden of initially establishing firm resettlement.

Burden and Credibility

The applicant for asylum bears the burden of proving that he or she is a “refugee” within the meaning of the statute.  This requires the applicant to establish that one central reason for his or her persecution or reasonable fear of persecution was one of the five protected grounds.  In asylum proceedings, the trier of fact will make a credibility determination on the applicant’s or witness’s account.

The “EAD Clock” and Employment Authorization

Unfortunately, asylum applications are often pending for significant periods of time.  In general, once an asylum application has been pending for 150 days, an asylum applicant may seek employment authorization.  This only applies to asylum applications filed after January 4, 1995. Under certain cases, individuals who qualify as “ABT class members” may seek employment authorization under the “ABT Settlement Agreement.”  The agreement covers applications still pending on or after December 3, 2013.  Asylum seekers should consult with an attorney regarding EAD clock issues.

Frivolous Asylum Applications

If an individual is found to have made a “frivolous” application for asylum, he or she will be permanently barred from receiving any benefits under the Immigration and Nationality Act (INA).  An application is frivolous if any material elements of the application (meaning those elements that would influence the trier of fact’s decision on the application) are found to be deliberately fabricated.  This extremely harsh penalty underlies the seriousness with which the U.S. Government treats frivolous asylum applications.  In short, an individual should be fully honest in applying for asylum and only apply for asylum if he or she has plausible grounds to do so. 

Asylum Status and Asylee Adjustment

If an individual is granted asylum, his or her spouse and or children will be eligible for derivative asylum benefits.  An individual on asylum status will be authorized for employment and, with prior permission from the Government, may travel abroad and return.  The individual will not be returned to the country in which he or she fears persecution.

Asylum may be terminated on various grounds.  If the asylee is found subsequently to not meet the definition of refugee or if he or she is found to be described by one of the mandatory bars to granting asylum, asylum status can be terminated.  If the asylee voluntarily avails him or herself to the protection of his or her country of nationality or last habitual residence where he or she allegedly feared persecution, asylum status may be terminated.  However, it is important to note that returning to said country does not, in and of itself, lead to the termination of asylum status.  Finally, if the asylee acquires a new nationality and enjoys the protection of that nationality, asylum in the United States may be terminated.

An asylee may apply for adjustment of status after being physically present in the United States for at least one year subsequent to the application.  He or she must continue to meet the definition of “refugee” if his or her asylum status was granted after November 29, 1990.  The applicant must not be firmly resettled in another country and must continue to be admissible to the United States.  Derivatives must continue to qualify as derivatives of an asylee when applying for adjustment, except in limited cases where the principal asylee dies.

Alternatives to Asylum

For those seeking relief from removal, asylum applications are also considered for withholding of removal and protection under the convention against torture.  The grounds for withholding of removal are similar to those for asylum, although the applicant must show a higher likelihood that he or she would face persecution.  The Convention Against Torture only applies to fear of torture.  Unlike asylum, these forms of relief merely prevent an individual from being returned to a specific country and do not confer any immigration status.  There are cases in which an individual may be ineligible for asylum but eligible for withholding of removal or protection under the Convention Against Torture.

Individuals from countries designated for temporary protected status (TPS) may be able to seek TPS depending on when they arrived in the United States and the facts of their specific situations.

Guidance

Before lodging any kind of asylum application, it is important to consult with an experienced immigration attorney.  The attorney will be able to determine whether the individual has a bona fide case for asylum or for withholding of removal or protection under the Convention Against Torture.  Because the asylum process is complicated and evidence-intensive, it is recommended that all applicants work closely with an experienced immigration attorney throughout the entire process.  An attorney may also help an asylee and derivatives subsequently understand the rules of U.S. asylum status and for applying for adjustment of status.

Applicable Statutes

The definition of “refugee” is found in section 101(a)(42) of the Immigration and Nationality Act (INA).  The statutes regarding asylum eligibility and applications are found in section 208.  The asylee adjustment of status provisions are found in section 209.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Resources and materials:

Alexander J Segal - "Asylum in the United States", "Bars to Applying for Asylum", "Bars to Eligibility for Asylum"

Lawyer website: http://myattorneyusa.com