Asylum and Refugee

Seeking Political Asylum and Refugee Status in the USA?

In 1981, the Refugee Act was passed. Asylum and/or Refugee Status was to be granted to anyone outside of his or her own country of Nationality (or already in the United States) who is “unable or unwilling to return 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”.

Difference between Refugee Status and Political Asylum: Both refugees and asylees must fall under this category. The most important difference is that the Refugee status application is done outside the applicant’s home country as opposed to the Asylee who can apply while in the United States. You must apply for political asylum based on actual experience or persecution in your home country or fear of persecution based on race, religion or political opinion. Did you know you can apply for political asylum even if you are in the United States illegally. Consult with one of our experts to assist and guide you through the process.

What Is Asylum?

Asylum is a protection granted to foreign nationals already in the United States or arriving at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.

As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an asylum seeker.

How Does Asylum Help People Fleeing Persecution?

An asylee—or a person granted asylum—is protected from being returned to his or her home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylees may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance.

After one year, an asylee may apply for lawful permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, he or she must wait four years to apply for citizenship.

What Is the Asylum Application Process?

There are two primary ways in which a person may apply for asylum in the United States: the affirmative process and the defensive process.

1. Affirmative Asylum: A person who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, he or she is referred to the immigration court for removal proceedings, where he or she may renew the request for asylum through the defensive process and appear before an immigration judge.
2. Defensive Asylum: A person who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. In other words, asylum is applied for as a defense against removal from the U.S. Unlike the criminal court system, EOIR does not provide appointed counsel for individuals in immigration court, even if they are unable to retain an attorney on their own.

Asylum seekers who arrive at a U.S. port of entry or enter the United States without inspection generally must apply through the defensive asylum process. Both application processes require the asylum seeker to be physically present in the United States.

With or without counsel, an asylum seeker has the burden of proving that he or she meets the definition of a refugee. Asylum seekers often provide substantial evidence throughout the affirmative and defensive processes demonstrating either past persecution or that they have a “well-founded fear” of future persecution in their home country. However, the individual’s own testimony is usually critical to his or her asylum determination.

Certain factors bar individuals from asylum. With limited exceptions, individuals who fail to apply for asylum within one year of entering the United States will be barred from receiving asylum. Similarly, applicants who are found to pose a danger to the United States are barred from asylum.