If you’re considering applying for asylum in the United States, you’re not alone. Tens of thousands of people ask for asylum – that is, safe refuge – in the U.S. every year, and though not all are approved, many are. However, applying for asylum in the U.S. isn’t as easy as it may seem; you must meet certain criteria to qualify. Many people choose to work with a U.S. asylum attorney throughout the process, which this guide explains.
What is Asylum in the United States?
Asylum is a form of protection that the U.S. government may grant to people who have been persecuted or have a well-founded fear of persecution on account of their race, religion, nationality, political opinion, or membership in a particular social group. If the U.S. grants you asylum, you’re allowed to stay in the U.S., get a job or go to school, and even apply for permanent residency. If you get permanent residency in the U.S. through asylum, you can later apply for citizenship if you wish.
Who Qualifies for Asylum?
There are two ways to qualify for asylum: through the affirmative asylum process or the defensive asylum process.
Affirmative Asylum
The affirmative asylum process occurs when you apply for asylum after you arrive in the United States. You have up to a year from your arrival to apply, whether you entered the U.S. lawfully or unlawfully.
Defensive Asylum
The defensive asylum process occurs when you apply for asylum as a defense against being removed from the United States. This can happen if, for example, you’re placed in removal proceedings after being arrested by U.S. Immigration and Customs Enforcement (ICE).
You only qualify for asylum if you have been persecuted in your home country or if you have a credible fear of persecution for one of five reasons, which the following section explains.
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The 5 Grounds for Asylum
In order to get asylum in the United States, you must prove that you’re unable or unwilling to return to your country of origin because you have a well-founded fear of persecution on account of one of the following five grounds:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
Of these five grounds, political opinion and membership in a particular social group are the most common.
Race
If you’re applying for asylum based on race, you must show that you have been persecuted or have a well-founded fear of persecution because of your racial identity. For example, if you’re black and have been harassed, imprisoned, or tortured by the government or by a group that the government can’t or won’t control, you may be eligible for asylum.
Religion
If you’re applying for asylum based on religion, you must show that you have been persecuted or have a well-founded fear of persecution because of your religious beliefs. For example, if you’re part of a religious minority in your home country and have been harassed, imprisoned, or tortured by the government or by a group that the government can’t or won’t control, you may be eligible for asylum.
Nationality
If you’re applying for asylum based on nationality, you must show that you have been persecuted or have a well-founded fear of persecution because of your national origin. For example, if people of your nationality are routinely persecuted in your home country (or if you have already been persecuted for the same), you may be eligible for asylum in the United States.
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Political Opinion
If you’re applying for asylum based on political opinion, you must show that you have been persecuted or have a well-founded fear of persecution because of your political beliefs. For example, if you’re an outspoken critic of the government in your home country and have been harassed, imprisoned, or tortured by the government or by a group that the government can’t control (or refuses to control), you may be eligible for asylum.
Membership in a Particular Social Group
If you’re applying for asylum based on membership in a particular social group, you must show that you have been persecuted or have a well-founded fear of persecution because of your membership in that group. For example, if you’re a woman who has been persecuted by the government or by a group that the government can’t or won’t control because of your gender, you may be eligible for asylum.
What is Persecution?
Persecution is defined as any form of punishment or restraint that’s inflicted on someone because of their race, religion, nationality, political opinion, or membership in a particular social group. Persecution can take many different forms, including (but not limited to) physical or mental abuse, imprisonment, torture and death.
Under USCIS guidelines, the general elements of persecution include:
- Severity of harm. You must show USCIS that the harm you experienced or that you fear is sufficiently serious. For example, a fear of having your home tagged with graffiti probably isn’t sufficiently serious – but a fear of having your home destroyed due to your race, religion, nationality, political opinion or membership in a certain group may be serious enough to warrant asylum.
- Motivation. You must show that a group (such as a guerilla group or your country’s government) is seeking to harm you or will seek to harm you based on your race, religion, nationality, political opinion or membership in a certain group. Often, you can accomplish this by showing that you or others have suffered similar persecution for these reasons in the past.
- Persecutor. You must show that the group or entity that harmed you in the past (or that poses a threat to you now) is a part of your country’s government or an entity that your government is unable or unwilling to control.
- Location. You may only ask for asylum if you suffered harm (or fear that you will suffer harm) in your home country. If you suffered harm in a third country, it’s usually not enough to prove that you need asylum unless you can establish a connection between your persecutor and your home country. If you’re stateless – that is, you don’t have a country of origin – you may be able to use the country of your last habitual residence.
Can Persecution Come From Sources Other Than Your Government?
Persecution can come from your government or from groups that your government is unable or unwilling to control. For example, if you’re a member of a particular social group that’s persecuted by a guerilla group in your home country, you may be eligible for asylum even though the government isn’t directly persecuting you.
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How Do You Prove a Credible or Well-Founded Fear of Persecution?
If you’re applying for asylum, you must show that you have a well-founded fear of persecution based on your race, religion, nationality, political opinion, or membership in a particular social group. A well-founded fear is defined as a fear that’s based on reality and that you have good reason to believe will happen.
To prove a well-founded fear, you’ll need to show USCIS:
- The persecution you experienced in the past was based on one of the five grounds for asylum (race, religion, nationality, political opinion or membership in a particular social group)
- The persecutor in your home country is a part of your government or an entity that your government can’t or won’t control
- You’ll be persecuted if you return to your home country
- You have a genuine fear of persecution – that is, you’re not just making up a story to get asylum
Note: If you’re claiming persecution based on membership in a particular social group, you’ll need to show that the group is defined by immutable characteristics (such as gender, sexual orientation or membership in an ethnic minority) and that you can’t get protection from your government.
How to Apply for Asylum
If you want to apply for asylum, your attorney will file a Form I-589 with USCIS. The form asks for basic information about you and the grounds on which you’re seeking asylum. You’ll also need to submit evidence to support your claim, such as:
- Statements from witnesses
- Medical reports
- Documents from human rights organizations
- News articles
- Police reports
If USCIS determines that you have a credible fear of persecution, it may choose to grant you asylum.
Related: Can undocumented immigrants get legal status in the United States?
What if You’re Applying for Asylum During Removal Proceedings?
If you’re in removal proceedings, you may still apply for asylum. You’ll need to file a Form I-589, but you’ll also need to request that the immigration judge assigned to your case consider your application for asylum. Not everyone is eligible for asylum in removal proceedings, but don’t worry; your attorney may have a better way than asylum to defend you against deportation.
Common Questions About Asylum in the U.S.
Check out these common questions about asylum in the United States. If you don’t see the answer to your question here, please call our office at 914-481-8822 to schedule a consultation with an experienced asylum attorney in New York.
How is Asylum Different From Refugee Status?
Asylum and refugee status are both based on the fear of persecution, but there are some key differences between the two. Refugee status is granted to people who are outside of the United States, while asylum can be granted to people who are already in the U.S. or who are seeking entry at a port of entry.
Can You Work if You’re an Asylee in the United States?
If you’re granted asylum, you may be eligible to work in the United States. To get a work permit, you’ll need to file a Form I-765 with USCIS. The form asks for basic information about you and your asylum claim, and you’ll also need to submit evidence that you meet the requirements for a work permit.
Related: Everything you need to know before you take the U.S. citizenship test
What Happens if Conditions Improve in Your Country After You Apply for or Get Asylum?
If conditions in your home country improve, you may still be eligible for asylum. The law recognizes that conditions can change quickly, and that people who are persecuted in their home countries may not have the time or ability to get out before conditions get better. Of course, if you’re no longer facing persecution in your home country, you may not be eligible for asylum.
What Happens if You’re Denied Asylum?
If you’re denied asylum, you may be able to appeal the decision or apply for a different type of relief. Your attorney can help you understand your options and choose the best course of action for your case.
Do You Need to Talk to an Immigration Attorney About Asylum in the United States?
If you need to talk to an immigration attorney, we may be able to help you. Call our office at 914-481-8822 to schedule a consultation with an experienced, knowledgeable immigration attorney who can answer your questions and give you the legal advice you need.
