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How Does Asylum Work?

Qualified foreign nationals who are currently residing in the United States may apply for asylum if they have a well-founded fear of returning to their home country.  Specifically, asylum is available only to those individuals who have previously suffered persecution or who otherwise have a well-founded fear that they will face persecution in their home country on account of their race, religion, nationality, political opinion, or membership in a specific social group or class.

Asylum is extremely valuable to those who seek its protection — it precludes removal from the country and enables the individual (who has been granted asylum) to apply for lawful permanent resident status, thus avoiding persecution.  Given the legitimate risks faced by asylum seekers, it’s important that a well-considered strategy be employed.  In the event that the government denies asylum, there may be other options that the foreign national can explore with their attorney.

Asylum Requirements

Though your immigration status will not prevent you from applying for asylum (even illegal immigrants may apply for asylum), it is not a simple matter to qualify.  To be eligible, asylum seekers must meet the following requirements:

  • They must have a well-founded fear that they will face persecution in their home country;
  • Their fear of persecution must be based on their race, religion, nationality, political opinion, or membership in a specific social group (which is rather broadly defined and may include a variety of identities, such as one’s gender, sexual orientation, or caste grouping); and
  • They must have filed for asylum within a year of their date of entry into the United States (though there are a number of exceptions to the one-year application deadline that may apply).

For example, if you have entered and remained in the United States illegally for a six-month period, and you are afraid of returning to your home country because you have a well-founded fear of persecution for your sexual orientation (i.e., homosexuality is punishable by law in your home country and you could be tortured or killed due to your orientation), then you may qualify for asylum.

Understanding the Asylum Process

Affirmative Application

An affirmative application for asylum involves the proactive, direct submission of an application to the United States Citizenship and Immigration Service within a year of the date of entry (or later if certain exceptions apply to your case).

Defensive Application

A defensive application for asylum may be considered after the foreign national has been placed in removal proceedings.  The defensive asylum application will not go to the United States Citizenship and Immigration Service — instead, it will go directly to an immigration court judge, who will then set a hearing on your case.

Withholding of Removal

In extreme circumstances, an immigration judge may grant a withholding of your removal from the United States and thereby prevent you from having to return to your home country, even if you do not technically meet the requirements for asylum.  For example, if you wait too long to file your asylum application, then you may not be eligible for asylum, but the immigration court judge may find that your case warrants the withholding of removal.

Withholding is available when you are more likely than not to face persecution (on the same basis as one’s asylum case) in their home country.  This can be represented mathematically as a 51 percent likelihood of persecution upon return.

Questions?  Speak with an Immigration Attorney at Willy, Nanayakkara & Associates

As a fundamental matter, asylum seekers are under significantly more pressure (than other foreign nationals) to successfully secure their immigration future in the United States.  Though other immigrants may be looking to establish themselves economically or academically, asylum seekers are facing real threats to their life and freedom.  Given the high stakes nature of such matters, it is critical that asylum seekers access experienced legal counsel who can provide comprehensive guidance at every stage of the process.

If you’re an asylum seeker and are concerned about your future in the United States, we can help.  Please call 888-529-5990 or request an appointment online today for a confidential consultation with one of our immigration attorneys.