Serotte Reich, LLP – Immigration Law

Asylum

Any foreign national who is physically present in the U.S. or who arrives in the U.S., irrespective of status, may apply for asylum.

Applicants for asylum must establish:

(1) That s/he is a refugee within the meaning of the INA; and

(2) That s/he has a well-founded fear of persecution in his/her home country.

1. “Refugee”

In order to establish oneself as a refugee, an asylum applicant must show that at least one central reason for the persecution is or will be race, religion, nationality, membership in a particular social group, or political opinion.

2. “Well-founded fear of persecution”

Persecution has been defined to mean the infliction of suffering or harm in an offensive way. The harm need not be physical harm; substantial economic deprivation will also qualify. Also, the infliction of such harm need not be at the hands of the government.

Whether a fear of persecution is “well-founded” is determined by a “reasonable person” standard. The determination is based on whether a reasonable person in the asylum applicant’s circumstances would fear persecution.

3. Time Limit for Asylum Claims

Applications for asylum must be filed within one year after the date of arrival in the U.S. However, this time limit will not apply if the applicant can demonstrate either:

(1) Changed circumstances materially affecting his/her eligibility for asylum (Example: changed country conditions); or

(2) Extraordinary circumstances relating to the delay in filing an application within the time period required (Examples: serious mental or physical disability; ineffective assistance of counsel).

4. Additional Bars to Eligibility for Asylum

In addition to individuals who fail to meet the time requirement, the following individuals are NOT eligible for asylum relief:

(1) An individual who can be safely removed to another country;

(2) An individual who has had a previous asylum application denied, unless s/he can demonstrate changed or extraordinary circumstances;

(3) An individual who has participated in persecution of another on account of race, religion, nationality, membership in a particular social group, or political opinion;

(4) An individual who has committed a particularly serious crime; and

(5) An individual who is regarded as a danger to the security of the U.S.

5. Warning: Frivolous Applications for Asylum

A frivolous asylum claim is one in which a material element is deliberately fabricated. The consequence is that the applicant becomes permanently ineligible for any other immigration benefits.

6. Approved Applications for Asylum

If an individual’s application for asylum is approved:

(1) The individual may apply for adjustment of status one year later;

(2) The individual is entitled to work in the U.S.;

(3) The individual may be permitted to travel outside the U.S.; and

(4) The individual’s spouse and children may also be granted asylum.

7. Discretionary

Asylum is a discretionary form of relief. This means that to be granted asylum in the U.S., individuals must show, in addition to the requirements listed above, that they are deserving of the relief. If a foreign national applies for asylum in Immigration Court, the Immigration Judge makes the determination of whether the applicant is “deserving” of this form of relief from removal.

If an individual is denied asylum solely for discretionary reasons, s/he may still be eligible for a form of relief from removal known as withholding of removal.