Asylum in the U.S. may be granted if the applicant can demonstrate a “well-founded fear of persecution” based on:
- political opinion;
- nationality; or
- membership in a particular social group.
A person who is outside the U.S. may apply for refugee status based on these same five criteria. The Refugee Act of 1980 aligns US immigration laws with various UN conventions and protocols.
The fear of persecution must be either by the government of one’s country or by a group that the government is unable to control. If the person is able to establish “past persecution,” a presumption arises that he or she has established a well-founded fear of persecution. The burden of proof shifts then to the government to demonstrate that circumstances have changed and that the person no longer has a well-founded fear of persecution or that the person could avoid persecution by relocating in another part of his country and that it would be reasonable for him or her to do so.
If a person is in lawful immigration status, he or she can submit his application for asylum (Form I-589) directly with the USCIS. Should his application be denied, he or she will remain in status. However, if he or she in not in lawful status, should his or her application not be approved by the USCIS, it will be referred to an Immigration Judge.
If a person is in removal proceedings, he or she may also be eligible to apply for “withholding of removal” and for relief under the Convention Against Torture (CAT). However, in order to qualify for withholding of removal, the person must demonstrate that it is more likely than not that he or she will be persecuted if forced to return to his or her country. This is a higher standard than the “well-founded fear” standard for asylum, which can be met if the person has at least a 10% chance of being persecuted. Also, unlike asylum, obtaining withholding of removal or relief under CAT does not necessarily lead to permanent residence in the U.S.
The Convention Against Torture (CAT) defines torture using the following criteria:
- An intentional act;
- Infliction of severe pain or suffering;
- Under the custody or control of the offender;
- For a broad array of wrongful purposes;
- By or sanctioned by a public official; and
- Not arising out of lawful sanctions.
If the government can demonstrate that the person has “firmly resettled” in a 3rd country, the person is ineligible for asylum, withholding of removal and CAT.
Although generally a person must apply for asylum within one year after arriving in the U.S., there are some notable exceptions to this rule.
For those facing the possibility of being forced to live under the horrendous conditions encompassing the "well-founded fear of persecution," navigating the confusing immigration legal process should be the least of their worries. Not surprisingly, the application requirements for obtaining asylum in the U.S. is a daunting process for those who are unfamiliar with the immigration legal system and even more confusing for a foreigner living outside the United States. We can help. The legal advocates of Bushell & Widdison have extensive experience in obtaining asylum or refugee status in the United States for our clients. If you or someone you know is seeking asylum or refugee status in the U.S., please contact us today.