What is Asylum?
Asylum is a form of protection granted to foreign nationals in the United States who have been persecuted, or fear they will be persecuted on account of their:
- Membership in a particular social group
- Political opinion.
Individuals who meet this definition of a refugee (see below) and who are already in the United States, or who are seeking entry into the United States at a port of entry may qualify for a grant of asylum and be permitted to remain in the United States as long as they are not barred from either applying for or being granted asylum. Once asylum is granted, the individuals are then eligible to apply to adjust their status to that of a lawful permanent resident.
The U.S. Refugee Program provides protection to refugees by bringing them to the United States for resettlement, the U.S. Asylum Program provides protection to qualified applicants who are:
- Already in the United States
- Are seeking entry into the United States at a port of entry.
Asylum-seekers may apply for asylum in the United States regardless of their countries of origin and regardless of their current immigration status. There are no quotas on the number of individuals who may be granted asylum each year.
Who Is Eligible to Apply for Asylum?
You may apply for asylum regardless of your immigration status, whether you are here legally or illegally.
You have until one year of your last arrival in the United States to apply for asylum, unless you can document that there are changed circumstances that affect your eligibility for asylum or extraordinary circumstances directly related to your failure to file within one year. In either case, you must apply for asylum within a reasonable time given the circumstances.
If you previously applied for asylum and were denied by the Immigration Judge or Board of Immigration Appeals, you will be barred from applying for asylum, unless you demonstrate that there are changed circumstances which materially affect your eligibility for asylum. You will also be barred if you could be removed to a safe third country pursuant to a bilateral or multilateral agreement. Currently, the U.S. has a Safe Third Country agreement with only one country, Canada, and the agreement does not apply to individuals applying for asylum affirmatively.
Changed Circumstances: See 8 CFR § 208.4(a)(4)
These may include but are not limited to the following:
- Changes in conditions in the applicant’s country of nationality or, if the applicant is stateless, country of last habitual residence;
- Changes in the applicant’s circumstances that materially affect the applicant’s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or
- In the case of an alien who had previously been included as a derivative in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.
Extraordinary Circumstances: See 8 CFR § 208.4(a)(5)
These may include but are not limited to the following:
- Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the one-year period after arrival;
- Legal disability (e.g., the applicant was an unaccompanied minor or suffered from a mental impairment) during the one-year period after arrival;
- Ineffective assistance of counsel, provided that:
- The applicant files an affidavit setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard;
- The counsel whose integrity or competence is being impugned has been informed of the allegations leveled against him or her and given an opportunity to respond; and
- The applicant indicates whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel’s ethical or legal responsibilities, and if not, why not;
- The applicant maintained Temporary Protected Status, lawful immigrant or non-immigrant status, or was given parole, until a reasonable period before the filing of the asylum application;
- The applicant filed an asylum application prior to the expiration of the one-year deadline, but that application was rejected by the Service as not properly filed, was returned to the applicant for corrections, and was refiled within a reasonable period thereafter; or
- The death or serious illness or incapacity of the applicant’s legal representative or a member of the applicant’s immediate family.
Definition of Refugee from the Immigration and Nationality Act
The Immigration and Nationality Act defines “refugee” in Sec. 101(a)(42) as:
- Any 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 return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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, or
- In such circumstances as the President, after appropriate consultation (as defined in section 207(e) of this Act) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Who Will Be Barred From Asylum?
An asylum seeker will be barred from a grant of asylum pursuant to INA § 208(b)(2) if it is determined that he or she:
- Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; or
- Was convicted of a particularly serious crime such that is a danger to the U.S. (including an aggravated felony as defined under INA § 101(a)(43)); or
- Committed a serious nonpolitical crime outside the United States; or
- Has been firmly resettled in another country prior to arriving in the United States (see 8 CFR § 208.15 for a definition of “firm resettlement”).
An asylum seeker will also be barred from a grant of asylum under INA § 208 if he or she is described in the terrorism- and national security-related inadmissibility grounds at INA § 212(a)(3)(B) or (F) INA § 237(a)(4)(B) because he or she:
- Has engaged in terrorist activity;
- Is engaged in or is likely to engage after entry in any terrorist activity (a consular officer or the Attorney General knows, or has reasonable grounds to believe, that this is the case);
- Has, under any circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;
- Is a representative of
- A foreign terrorist organization, as designated by the Secretary of State under section 219 of the INA, or
- A political, social, or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities;
- Is a member of a terrorist organization designated under section 219 of the INA (Tier I) or otherwise designated through publication in the Federal Register under INA section 212(a)(3)(B)(vi)(II) (Tier II);
- Is a member of an undesignated terrorist organization described in INA section 212(a)(3)(B)(vi)(III) (Tier III), unless he or she can demonstrate by clear and convincing evidence that he or she did not know, and should not reasonably have known, that the organization was a terrorist organization;
- Has used a position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities.
- Has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization;
“Military-type training” is defined at 18 U.S.C. § 2339D(c)(1) to include: “training in means or methods that can cause death or serious bodily injury, destroy or damage property, or disrupt services to critical infrastructure, or training on the use, storage, production, or assembly of any explosive, firearm or other weapon, including any weapon of mass destruction . . .”
- Is the spouse or child of an alien who is inadmissible under this subparagraph, if the activity causing the alien to be found inadmissible occurred within the last 5 years. To qualify as a “child”, the individual must be unmarried and under 21 years of age.
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