Refugee Status and Asylum
An immigrant is eligible for refugee status or asylum if she has been persecuted or fears she will be persecuted because of her race, nationality, religion, and/or membership or opinions related to a social group or political opinion.
A person may be granted refugee status if she meets the definition of refugee and is of a special humanitarian concern for the U.S. Typically, refugees are people outside of their country who are unable or unwilling to return home because they fear serious harm.
This status is a type of protection available to individuals who:
- Meet the definition of a refugee;
- Are already present in the U.S.; or
- Are seeking admission at a port of entry.
An individual may apply for asylum in the U.S. regardless of his or her country of origin or lack of immigration status.
Like most other laws, there are exceptions for aliens seeking asylum that will limit or prevent an immigrant from being eligible for asylum-based relief:
- Safe third country: Asylum is unavailable if the Attorney General finds that the alien can be removed to a country where her life or freedom would not be threatened based on her race, religion, nationality, and/or membership or opinions related to a social group or political opinion and where the alien would have access to a complete and fair procedure for determining a claim to asylum of another equivalent;
- Time limit: Asylum is also unavailable if the alien cannot prove by clear and convincing evidence that the application has been filed within 1 year after the alien's date of arrival to the U.S. (although there is sometimes an exception that can be made to this rule);
- Previous asylum applications: Asylum may also be unavailable to the applicant if he or she has previously applied for asylum and that previous application was denied.
Burden of Proof
There is a substantial burden of proof placed upon the applicant-alien who wishes to establish refugee status. To begin, as noted above, the alien must prove that race, religion, nationality, and/or membership or opinions related to a social group or political opinion was or will be at least one central reason the persecution of the alien in her home country.
Next, the alien may provide sufficient testimony to sustain the burden of proof without additional corroboration. This is true only if the alien can show that the testimony is credible, persuasive, and refers to a sufficient amount of specific fact.
To prove this element, the trier of fact may weigh the alien's testimony along with other evidence in the record. To determine credibility, the immigration judge or asylum officer may consider the totality of the circumstances. This includes relevant factors such as: demeanor, candor, and responsiveness of the alien during her testimony.
Disqualifications to Being Eligible for Asylum
If an asylum officer or immigration judge makes certain determinations about an applicant for asylum, he or she may be found to be ineligible to receive asylum in the United States. The factors that may preclude a grant of asylum include the following:
- A finding that the alien ordered, incited, assisted, or somehow participated in the persecution of another based on race, religion, nationality, and/or membership or opinions regarding a particular social group or political opinion;
- A finding that the alien, was previously convicted by a final judgment of a serious crime, constituting a danger to the U.S.;
- A finding that there are serious reasons for concluding that the alien has committed a serious, nonpolitical crime outside of the U.S. prior to her arrival to the U.S.;
- A finding that there are reasonable grounds for considering the alien to be a danger regarding the security of the United States; and
- A finding that the alien was substantially settled in another country before arriving in the U.S.
If asylum status has been granted to an individual, there are certain protections that the alien now has. These protections provide that the Attorney General:
- Will not remove the alien to the her country of nationality or, in some cases, her last residence;
- Will authorize the alien to be employed in the U.S. and shall provide her with a proper endorsement; and
- With prior consent, may approve travel abroad by the alien.
Termination of Asylum
After receiving the protection of asylum, it may be revoked if the Attorney General deems it necessary. These reasons are categorized as:
- When the alien no longer meets the conditions described in related sections, which results in a fundamental change in circumstances;
- The alien may be removed to a country where the alien's life or freedom would not be threatened because of race, religion, nationality, and/or membership or opinions related to a social group or political opinion and where the alien may receive asylum or an equivalent temporary protection;
- When the alien has voluntarily availed herself of the protection of the alien's country of nationality or her last residence, by returning to the country with permanent resident status or the reasonable possibility of obtaining the status with the same rights and obligations pertaining to other permanent residents of the country; or
- When the alien has acquired a new nationality and reaps the protection of that country.
Procedure for Asylum
At the time of the Asylum application, the Attorney General will typically mandate that the applicant-alien submit fingerprints and a photograph.
The alien is not automatically entitled to receive employment authorization in conjunction with asylum. An alien who is not typically eligible for employment authorization will not be granted authorization for the 180 days prior to the date of filing for asylum.
Once the appropriate fees have been paid, the Attorney General will advise the alien that she is allowed to employ legal representation in relation to any and all asylum considerations.
Policy dictates that the alien's initial hearing regarding her asylum application will commence no later than 45 days after the date the application is filed. A final decision will be made on the asylum application within 180 days after filing.
If the alien chooses to appeal the final decision, she must file that appeal within 30 days after the decision.
If you or a loved one are dealing with issues related to refugee status or asylum, contact an experienced attorney who can demystify the process and help you win your asylum claim.