U.S. Asylum Law
U.S. asylum law is made up of several different legal authorities, including U.S. immigration statutes and regulations, federal case law and international treaties and conventions. People who are outside of the United States may apply for refugee protection under the United Nations Protocol, to which U.S. is a signatory. People who have arrived in the U.S. or are physically inside the country may apply for asylum protection.
In order to qualify for asylum protection, an individual must meet the basic definition of a refugee: [A]ny 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 avail himself or herself of the protection of that country because of persecution or wellfounded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion.
What does it mean to be persecuted? The word itself is not specifically defined in the rules and regulations but through case law the courts have found that persecution exists in the following situations:
- Serious violations of basic human rights
- Target of persistent death threats and threats to property and business
- Severe economic deprivation that threatens an individual’s life or freedom, or cumulative forms of discrimination or harassment rising to the level of persecution
- Violation of one’s fundamental beliefs
- In certain circumstances, physical harm to others, such as close family members
The persecutor must be either the government or a group of individuals that the government is unable or unwilling to control. In cases where the persecutor is not a state actor, an adjudicator will consider the efforts made to inform the government of threats or attacks, as well as governmental efforts to prosecute similar harm.
An individual who successfully demonstrates that he or she has suffered past persecution will have met the definition of “refugee” and is eligible for a discretionary grant of asylum. The showing of past persecution gives rise to the presumption that the person has a well-founded fear of future persecution. The burden of proof then shifts to the government to prove by a preponderance of evidence that country conditions have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted. The government may also rebut the presumption if an applicant could avoid persecution by relocating to another part of the country under reasonable circumstances.
An individual may counter the government’s position that country conditions have changed and still receive asylum protection by demonstrating compelling reasons of being unwilling to being returned to his or her country of nationality or last habitual residence arising out of the severity of the past persecution or has established that there is a reasonable probability that he or she may suffer other serious harm upon removal to that country.
In a case where the applicant has not suffered past persecution, he or she is still eligible for asylum protection based on a fear of future persecution alone. There is both an objective and subjective component to a well-founded fear of persecution: a person must have a subjectively genuine fear and the fear must be objectively reasonable. This means that a person must express a subjective fear of returning. It also means that there must be an objective basis for that fear. An applicant must provide credible evidence such as human rights documentation and expert testimony on conditions in the country.
It is not necessary for an applicant to prove persecution is a certainty, only a reasonable probability. For example, someone with only a “one in ten” chance of persecution may still be eligible for asylum. Further, a person need not be singled out for persecution if there is a pattern of practice of persecution of groups or persons similarly situated to the applicant.
Persecution on Account of One of the Five Statutory Grounds
The feared persecution must be “on account of” one of the five grounds: race, religion, nationality, membership in a particular social group, or political opinion. An applicant must successfully demonstrate that there exists a nexus between the feared harm and one of the five protected grounds to win an asylum case. An applicant should provide direct or circumstantial evidence to demonstrate the connection between the persecution and the protected ground. An applicant must highlight the central reason for the persecution by including in his or her affidavit and testimony statements by the persecutors, details on the circumstances of persecution, and news reports and country profiles mentioning harm to similarly situated individuals that have led the applicant to fear harm on one of the five protected grounds.
One Year Filing Timeline
An asylum seeker must file an application for asylum within one year of his or her arrival in the United States. The deadline is calculated by subtracting from the date of entry, minus one day. The application must be received by the government by this date.
For an applicant who has missed this timeline, there are two limited exceptions to the one year filing timeline: (1) changed circumstances that materially affect an applicant’s eligibility for asylum; and (2) extraordinary circumstances relating to the delay in filing an application within the period. Changed circumstances apply to circumstances materially affecting eligibility, such as changes in country conditions and changes in the applicant’s circumstances (including changes in U.S. law and activities in the United States). Extraordinary circumstances refer to those events or factors directly related to the failure to meet the one year deadline, and the applicant must not have intentionally created the extraordinary circumstances. Examples of extraordinary circumstances include a serious illness or mental or physical disability, including effects of persecution; legal disability; serious illness of the applicant’s representative or immediate family member; ineffective assistance of counsel; maintaining any valid immigrant or nonimmigrant status; temporary protected status, or parole; and filing within one year, where the application was rejected as improperly filed and refiled within a reasonable period after such rejection.
Other Bars to Asylum
An applicant also may be ineligible for asylum protection if there is a safe third country to which he or she may be removed pursuant to a treaty or an agreement; if the applicant had previously applied to an immigration judge for asylum protection and was denied; if the applicant had previously persecuted or participated in the persecution of others; if the applicant has a serious criminal history or has been convicted of a serious nonpolitical crime outside of the United States prior to arrival; if the applicant is perceived to be a national security risk to the United States; if the person has engaged in terrorist activities or has provided material support to terrorist organizations; or if the person has firmly resettled in another country.
Asylum is a complex area within U.S. immigration law. Contact our office for a consultation if you are considering this immigration option.