Eligibility for Seeking Asylum in the US
A person physically in the United States, who expresses a fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group, is eligible to apply for asylum. While some of these categories are clear, others, such as what constitutes a “social group,” is subject to significant litigation in federal courts. If a person receives a grant of asylum, he or she will subsequently be able to apply for adjustment of status (green card).
To seek legal protection from being deported, asylum seekers must:
- Be outside their country of nationality. Asylees are by definition in the United States and thus necessarily outside their country of nationality. The law expressing this is INA § 101(a)(42)(A).
- Be afraid of persecution by the government in the native country. Torture, for example, is persecution recognized under the law, while harassment or discrimination is almost never found to be a kind of persecution. However, the cumulative effect of various types of harm can be persecution when added together, such as economic disadvantage (unable to obtain gainful employment), interference with one’s right to privacy, substandard living conditions, deprived of higher education, and/or ostracized by society. Where these lines are drawn is different in each case.
- Be harmed or fear harm by parts of the government. The police and the army are parts of the government. Harm by right-wing or left-wing political groups or religious zealots that the government is “unable or unwilling to control” also meets the demands of asylum laws.
- Be affected by at least one of several defined conditions. As suggested above, these conditions are: political opinion, race, religion, nationality, and social group. The last category, social group, usually refers to people with certain characteristics that a particular society might lump together and about which it generally has an unfavorable attitude, such as homosexuals. The law generally does not include people who fled their homes due to civil wars, generalized violence, or criminal prosecution. However, one of these reasons may suffice for asylum if it can be connected to one of the five listed conditions.
- Not be a danger to the community. Finally, international law recognizes that countries have the right to exclude asylum seekers who may be a danger to society. Those excluded are those who have committed “particularly serious crimes,” including aggravated felonies as defined in INA § 101(a)(43), pose threats to national security, or who have committed war crimes or “crimes against humanity.”
Bars to Seeking Asylum
Even if you meet the above criteria for asylum, you may be barred from seeking asylum under certain circumstances. Some of the bars to asylum include but are not limited to:
- conviction for a “particularly serious crime” (includes aggravated felony convictions)
- committed a serious nonpolitical crime outside of the United States
- poses a danger to the security of the United States
- has engaged, ordered, 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
Warning Against Filing a Frivolous Asylum
If you file a frivolous asylum application, you will be PERMANENTLY BARRED from seeking any form of discretionary relief in the United States, including adjustment of status, cancellation of removal, or voluntary departure.
For immigration purposes, an asylum application is frivolous if any of its material elements is deliberately fabricated.
Remember, the credibility of your claim is at issue in an asylum case. What you write in your application, and what you say under oath in an asylum interview or in an immigration court, will decide whether you are a credible person and have a credible claim.
If the immigration judge finds that you have filed a fraudulent asylum application, not only will you have a deportation order that will be difficult to reverse on appeal, but you will never be able to apply for any other form of discretionary relief!
So, if you knowingly submit a fraudulent asylum application, you are subject to the harsh penalty of permanently becoming ineligible for other relief, regardless of sympathetic circumstances.
A frivolous finding is basically a “death sentence” for immigration purposes, so you should never file a frivolous application.
Withholding of Removal (INA § 241(b)(3))
The Attorney General may not remove a person to a country where his or her life or freedom would be threatened because of his or her race, religion, nationality, membership in a particular social group, or political opinion.
To win a claim for withholding of removal, you must show that there is a “clear probability” that you will be subject to persecution if forced to return to the country of removal, or that it is “more likely than not” that you would be persecuted if you are removed to the home country.
Of course, this is a higher burden of proof than the showing of “past persecution or a well-founded fear of future persecution” required for asylum. However, unlike asylum, which is a discretionary form of relief, withholding of removal is mandatory once you establish that your life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion.
If granted withholding of removal under INA § 241(b)(3), the applicant can remain in the United States, but can NOT be granted lawful permanent resident status (green card) on that basis.
Additionally, a grant of withholding of removal only means that you cannot be deported to your native county; if and when the United States government finds another country that will accept you, you will be deported to that country.
Convention Against Torture (CAT)
Article 3 of the United Nations Convention Against Torture protects aliens who fear torture in their native country. Unlike asylum and withholding of removal, CAT does not require that the alien be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.
Convention Against Torture is a treaty that prohibits the return of a person to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture if returned to his or her native country.
“Torture” is defined in Article 3 of CAT. There are no bars to eligibility for Convention Against Torture, and those who do not qualify to seek asylum can nonetheless seek protection under CAT.
To win a Convention Against Torture claim, you must prove that it is “more likely than not” that you would be subject to torture if forced to return to your native country.
If you are granted protection under Convention Against Torture, you cannot be removed from the United States to the country from which you fear being tortured, but you can be removed to any other country if that county will accept you.
A grant of CAT relief does not entitle you to become a lawful permanent resident (green card holder). However, based on such a grant of relief, you can obtain an employment authorization document (EAD) and can reside and work lawfully in the United States.
Competent Representation is Key
As it is true about any other area of immigration law, competent representation of your asylum claim is key in putting forth the best and strongest possible application. If you wish to seek asylum, withholding of removal, or relief under Convention Against Torture you are required to file Form I-589. Form I-589 covers all of these forms of relief. There is no filing fee associated with an application for asylum.
Be careful of lawyers or representatives who “promise” you that you will win your asylum case and that you have “nothing to worry about”! You should consult competent attorneys prior to filing an application for asylum, because there are severe consequences for filing a fraudulent asylum application before an Immigration Court. While those who “promise” you a victory have nothing to lose if you do not win your asylum case, you have everything to lose! Do not take unnecessary risks!
If you believe you are eligible for asylum, withholding of removal, or relief under Convention Against Torture and would like to apply download Form I-589 from USCIS
If you wish to consult Thaker Berowitz LLP about your eligibility for any of these forms of relief, confidential asylum consultation.
While the information in this article is current at the time of writing, you should ALWAYS seek legal advice before you engage with the USCIS. Rules and interpretations change constantly and this article should not be considered legal advice. It it informational only. Asylees are strongly encouraged to seek legal advice as early as possible in the process.