In 2018, over 70,000 people sought admission to the United States based on a fear of returning to their country of origin. Under federal law, the U.S. provides protection in the form of asylum to individuals who have been persecuted or have a well-founded fear of persecution in their country of origin based on one of five protected grounds: race, religion, political opinion, nationality or membership in a particular social group. Pursuant to an international treaty to which the U.S. is a signatory nation, the law also protects individuals who are more likely than not to be tortured if they are returned to their country.
There are very specific requirements that must be met in order to receive protection from either persecution or torture.
While tens of thousands of individuals may fear returning to their country of origin, many of them do not meet the statutory requirements to receive asylum under U.S. law. To be eligible for asylum, your fear of returning must be based on certain facts, you must apply for asylum within a certain time frame, and there must not be any circumstances that bar you from receiving asylum, such as participation in a terrorist organization.
To qualify for asylum, you must each of the following elements:
The Immigration and Nationality Act does not expressly define the term ”persecution” outside of the term’s inclusion in the definition of “refugee”:
“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 habitually resided, and who 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.”
Courts have held that determining what actions rise to the level of persecution is very dependent on the facts of the case, but that the actions must involve an offensive infliction of harm or suffering and must amount to more than mere harassment, unpleasantness or even basic suffering.
To determine whether your past experience or future fears rise to the level of persecution, you should seek the advice of a knowledgeable and experienced immigration attorney.
In support of your asylum application, you may describe one or more past experiences of persecution you suffered in your country of origin or demonstrate that, while you have not been persecuted in the past, you have a well-founded fear that you would be persecuted if you were forced to return to your country.
If you were persecuted in the past, but no longer have a well-founded fear of future persecution, you may be granted asylum if the persecution was so severe that you are unable or unwilling to return to your country, or there is a reasonable possibility that you will be seriously harmed when you return.
Although many individuals and families who seek to build a better life in the U.S. fear returning to their countries for a variety of reasons, including serious crime, poverty or disease, asylum is only granted to those who suffer persecution based on their race, religion, nationality, political opinion or membership in a particular social group.
Membership in a particular social group is one ground for asylum that is frequently litigated, with government attorneys arguing in favor of a more narrow and limited interpretation, and immigration defense attorneys arguing for an interpretation, based on case law, that protects their client and their client’s family from future harm.
Some examples of social groups whose members have received asylum based on their persecution include, but are not limited to, homosexuals, transgender individuals, child soldiers, victims of female genital mutilation and social classes.
To quality for this protected ground, you must be a member of a social group that: 1) shares common immutable or fundamental traits; 2) is socially distinct and 3) is particular.
Lastly, you must show that the persecutor (past or future) is the government itself, an individual or entity sponsored by the government, or that, for some reason, the government cannot or will not protect you from your persecutor.
Sometimes, proving that the government cannot or will not protect you can be complex. You may satisfy this element by demonstrating that, although your government is willing to protect you, their efforts fall short of actually protecting you from persecution.
Federal law requires that you apply for asylum within one year of entering the United States. You must demonstrate that you met this deadline with clear and convincing evidence.
In practice, this means that if you were not lawfully admitted into the U.S. — a U.S. immigration official did not inspect and admit you into the U.S. at a lawful point of entry — you must prove that you entered the country not more than one year before you filed your asylum application with other evidence. This date is determined by the date that U.S. Citizenship and Immigration Services (CIS) received your application — not the dates when you filled out or mailed your application. Therefore, it is important not to leave your application until the last minute.
If you were not lawfully admitted, various forms of evidence may be offered in support of your date of entry including witness testimony. There are two exceptions to this rule: changed circumstances and extraordinary circumstances relating to your delay.
In addition to the one-year deadline, there are several other bars to asylum including, but not limited to, if you yourself were a persecutor or terrorist, or you were convicted of a particularly serious crime.
If you do not meet the statutory requirements to receive asylum status, you may be able to avoid removal to your country of origin, if your circumstances prohibit your removal under the Convention Against Torture.
The Convention Against Torture prohibits signatory nations, including the United States, from returning an individual to a country where it is more likely than not that they will be tortured upon their return. To apply for protection under this law, you can indicate on your asylum application that you are also applying for Withholding of Removal. Unlike asylum, there is no deadline to apply for Withholding of Removal. If you do not otherwise meet the statutory requirements of asylum, you may be granted Withholding of Removal, but you will not receive the added benefits of asylee status, including a pathway to U.S. citizenship.
If you or a family member fear returning to your country due to past or future risk of persecution, enlist the counsel of an experienced and skilled immigration attorney to help you obtain asylum in the United States. At Stephenson, Chávarri & Dawson, our team of immigration attorneys have helped countless clients gain lawful status in the United States and later become U.S. citizens. For a complimentary consultation, contact us today at (504) 523-6496.