Seeking Asylum in the United States

The Refugee Act of 1980, which incorporates elements of international law, provides protection for persons seeking protection from persecution. Generally, an applicant for asylum relief must meet the definition of a refugee. A refugee is defined as "any person outside his or her country of nationality, or in the case of a person having no nationality, his or her last habitual residence, 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." INA §101(a)(42)(A), 8 U.S.C. §1101(a)(42)(A). There is no right to asylum in the U.S. Although an applicant may satisfy the statutory requirements for asylum, the government may deny protection as a matter of discretion.

There are two ways to apply for asylum. If the asylum applicant is inside the United States and not subject to removal proceedings, the applicant may file an asylum application with the United States Citizenship & Immigration Services (USCIS). If the applicant is in removal proceedings, or the USCIS declines to adjudicate the application, the applicant may apply for asylum before an immigration judge. The applicant must apply for asylum within one year of entry, unless the applicant can show changed circumstances or exceptional circumstances.

An applicant for asylum is ineligible for asylum protection if:

  • the applicant participated in persecution of others because of race, religion, nationality, membership in a particular social group, or political opinion;
  • the applicant has been convicted of a particularly serious crime in the United States constituting a danger to the community;
  • the applicant has committed a serious non-political crime outside the United States;
  • the applicant is deemed a danger to the security of the United States;
  • the applicant is not admissible based on terrorism-related grounds;
  • the applicant has firmly resettled in another country prior to arrival; or
  • the applicant has been convicted of an aggravated felony as defined by immigration law.

Applicants granted asylum may request derivative asylum status for their spouses and children. A person may apply for lawful permanent resident status in the United States after one (1) year of being granted asylum status.

The asylum and refugee laws of the United States are complex and subject to change. It is advisable that the applicant contact our immigration lawyers and seek counsel to determine their facts, relevant issues and potential pitfalls.

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