Individuals who are presently in the United States who legitimately fear persecution in their home country may apply for asylum. However, before asylum is granted, an applicant must follow several requirements and meet eligibility guidelines.

 

Physical Presence

The key difference between asylum and status as a refugee is physical presence. While individuals can apply for refugee status while outside the United States, the same does not apply to applicants for asylum. The individual must already be in the United States or make an application at a point of entry. Legal status is not necessary for a person to be approved for asylum.

Timing Requirement

Generally, a person must apply for asylum within a year’s time of their most recent arrival in the United States. However, a person can be in the country longer if he or she can show that extraordinary circumstances directly related to the individual’s lack of filing within a year arose. Additionally, if material circumstances that affect the person’s eligibility for asylum have changed, the individual may be able to apply even if a year has passed. These types of circumstances include changes in the individual’s own circumstances, his or her home country or other events. However, under any scenario, an individual must apply within a reasonable period of time, given the particular circumstances.

Restrictions

A person who has applied for asylum and been denied by an immigration judge or the Board of Immigration Appeals is barred from applying for this status unless the individual can show changed circumstances, as explained above. Additionally, if a person can move to another country that will be safe for him or her and the third country agrees to this arrangement, asylum will not be granted.

The Attorney General can also refuse to grant asylum to an applicant for a variety of reasons, such as if the applicant was involved in persecuting others, was convicted of a serious crime, is considered a threat to national security or participated in terroristic activity. If the Attorney General determines not to grant asylum due to these reasons, there is no judicial review of the decision.

Credible Fear Hearings

Individuals who are stopped at the border may have to attend a hearing in which they describe their circumstances so that immigration officials can determine whether they have a credible fear of returning to their home county.

This process helps asylum officers quickly dispose of cases that are likely not to be approved. The officer who hears your story does not have the authority to approve your asylum request but only to determine whether your fears seem credible.

Form I-589

For individuals who apply for asylum who have made it past the border and were not detained there, the possibility to file Form I-589 is an available option. This application requires you to submit an affidavit in which you describe the facts involved in your case. You may also submit evidence that helps substantiate your claim, such as membership cards or documents that show that you are part of a particular group that is being persecuted, medical records that show that you were harmed or tortured and newspaper articles.

Asylum Interview

After submitting your application for asylum, you will be required to attend an asylum interview. Here, you will need to be prepared to discuss information in your application, affidavit and background.

Legal Test

In order to be approved for asylum, you must be able to demonstrate that you are unable or unwilling to return the country from which you hail due to your fear of persecution or previous persecution and your persecution is tied to certain characteristics, such as being part of a particular social group or political opinion.

This last basis is the most difficult to define and new case law continues to be established as more groups are recognized. Persecution may include significant harms such as being imprisoned or tortured, fired at for protesting, being targeted for genocide. Forced sterilization or abortion is specifically laid out in the immigration code. Additionally, a denial of basic human rights may qualify a person for asylum. A person may also qualify for asylum if they were harassed, oppressed or caused to suffer from physical or psychological harm.

Legal Assistance

Because an asylum case can move quite quickly, it is important to contact an immigration lawyer as quickly as possible so that he or she can help you properly prepare for your case.