Asylum and Witholding of Removal

A foreign national who has a “well-founded fear” of persecution in his or her home country on account of race, religion, nationality, membership in a particular social group, or political opinion may be eligible for the relief of asylum.  To demonstrate “well-founded fear,” the asylum applicant must show:

1. He or she has such a fear of persecution in his or her country of nationality (or if stateless, country of last habitual residence);
   
   
2. There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and
   
   
3. He or she is unable or unwilling to return to, or avail himself or herself of the protection of that country.

An asylum applicant may establish well-founded fear by showing that a reasonable person in his or her circumstances would fear persecution.

There are two different ways to apply for asylum: affirmatively or defensively.  One can affirmatively apply for asylum if he or she is not already in removal proceedings by filing a Form I-589 application with the U.S. Citizenship and Immigration Services (“USCIS”).  After reviewing the application, an Asylum Officer would interview the applicant in a non-adversarial environment.  If the Asylum Officer approves the application, asylum would be granted.  If denied, the case would be referred to Immigration Court for removal (or deportation) proceedings where the asylum applicant could assert asylum as a form of relief from removal.

If an individual has already been placed in removal proceedings, he or she may assert asylum defensively as a basis for relief from removal.  If the Immigration Court determines the individual to be eligible for asylum, it would be granted.  If the Court denied the asylum claim, the individual could appeal the decision to the Board of Immigration Appeals (“BIA”).

To be eligible for asylum, the individual must apply within one year of entering the U.S.  There are two exceptions to the one-year filing requirement: if conditions in the home country have changed such that they materially affect the applicant’s eligibility for asylum; or if extraordinary circumstances caused the delay in filing.  There are other bars to asylum, including if an applicant is determined to have firmly resettled in another country prior to arriving in the U.S. or if the applicant can be removed to a safe third country. 

If granted asylum, asylees may apply for permanent residence one year after the asylum grant and may bring their spouses and children to the United States as derivative asylees (as long as their familial relationship existed at the time the principal applicant obtained asylum).

If an applicant is found to be ineligible for asylum, there are alternate forms of relief that may be available such as withholding of removal and protection under the Convention Against Torture.