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Asylum

What is asylum?

Asylum is a legal protection granted by a nation to someone who has left their native country as a refugee.

Who is considered a refugee?

A refugee is any person who is outside of their country of nationality who is unable or unwilling to return to their country of nationality because of persecution or a well-founded fear of persecution because of one or more of the following factors:

  • Race
  • Religion
  • Nationality
  • Membership in a Particular Social Group
  • Political Opinion

Who can apply for asylum?

Anyone who is physically present in the United States or who arrives in the United States may apply for asylum. However, asylum is only granted to those who can show they are a refugee.

When can I apply for asylum?

You can apply for asylum up to one year after you have arrived in the United States. After one year of arrival, asylum is no longer available except in special circumstances.

What are some of the benefits of asylum?

If you are granted asylum, you have the right to remain in the United States and not be deported to the country from which you are seeking asylum and the right to begin working immediately. You may also apply for adjustment of status (green card) one year after your asylum is granted and citizenship four years after that.

What do I have to show for my asylum application to be approved?

First, you must be physically present in the United States.

Second, you must show that you are afraid of returning to your native country because of past persecution or the reasonable possibility of future persecution.

Third, you must show you were (or will be) persecuted by the government of your native country or a group the government is unable or unwilling to control.

Finally, you must show that the persecution was (or will be) on account of one of the five protected grounds, which include your:

  • Race
  • Religion
  • Nationality
  • Membership in a Particular Social Group
  • Political Opinion

What counts as persecution?

There is no one definition for persecution; however, some courts have described persecution as a threat to the life or freedom of those who are considered different in a way that can be seen as offensive. The determination whether harm amounts to persecution is made on a case-by-case basis. 

What is considered harm?

Some examples of harm include serious physical harm, forced medical or psychological treatment, overly harsh punishment by the police or the government, and severe criminal extortion or robbery.

Is domestic violence or gang violence considered harm?

Individuals fleeing domestic violence or gang violence may still qualify for asylum.  However, there have been recent legal developments that have affected these claims. See Matter of A-B, 27 I&N Dec. 316 (A.G. 2018).  Therefore, it is recommended an individual fleeing this type of violence speak with an attorney about how the recent change in the law may affect their case. 

Who is a member of a particular social group?

A particular social group is a group of people who share something in common that they cannot or should not have to change. Some examples of particular social groups include your gender, sexual orientation, tribal group, or your family. In addition, the group must have social visibility and particularity.

  • Social visibility requires that the group be perceived as a group in society.
  • Particularity refers to whether the group can be clearly defined. It should be easy to tell who is in the group and who is not in the group.

Do I have to be involved in politics to have a political opinion?

No! Political opinion includes the support of “fundamental rights”. However, having a political opinion is not enough. You must also show a connection between your political opinion and the persecution you are experiencing.

I was persecuted by my neighbor because he doesn’t like my family. Is that enough to request asylum?

Generally, no. You will still need to show that the persecution was based on one of the five protected grounds and that the person or group of persons persecuting you was either the government or a group that the government is unable or unwilling to control.

If I can show that I am eligible for asylum, will my asylum application automatically be approved?

Generally, no. Proving you are eligible for asylum is only the first step of applying for asylum. The judge hearing your case, or asylum officer reviewing your application has discretion, meaning he or she will look at and balance all other positive and negative factors of your specific case and decide whether you should be granted asylum.

Can my spouse and children also claim asylum, even if they are not in the US?

If your spouse and children are in the United States, you can include them in your asylum application; however, you will have to have proof of the relationship, such as your marriage certificate or your child’s birth certificate. Additionally, your child must be under the age of 21 and not married.

If your spouse and children are not in the United States, you can file a petition for a Refugee/Asylee Relative (form I-730) on their behalf only after your asylum application is approved.

Can I work after I’ve been granted asylum?

Yes! One of the benefits of being granted asylum is that you may work in the United States immediately after being granted asylum. If you have applied for asylum but have not yet received a decision, you can apply for a work permit 150 days after you filed your application, but will have to wait an additional 30 days before work authorization is granted.  To apply for a work permit, you should file form I-765. 

I entered the United States more than a year ago. Are there any other forms of relief I can apply for?

Yes! If you are past the 1-year asylum application deadline, you can apply for Withholding of Removal and/or Convention Against Torture. You will use the same form, I-589, for Withholding of Removal and Convention Against Torture. You may also be eligible to apply for asylum, even after the 1-year deadline, if you can show you qualify for one of the exceptions (changed or extraordinary circumstances) to this rule.

What is Withholding of Removal and how is it different from asylum?

Withholding of Removal is another form of legal protection that allows a person to remain in the U.S. if they have suffered past persecution or if they fear future persecution. However, withholding of removal does not have a 1-year filing deadline rule. Withholding of Removal can be requested any time after you have arrived in the United States, but you must be in immigration court to apply for this type of relief.  However, you will still have to show the same evidence that is required for asylum.

Will I receive the same benefits if I apply for Withholding of Removal?

You will receive some, but not all, of the same benefits as asylum if you qualify for Withholding of Removal. For example, you will be allowed to apply for and renew a work permit, but you will not be allowed to apply for adjustment of status (green card) or U.S. citizenship. Additionally, unlike asylum, a grant of Withholding of Removal does not allow you to apply for certain immediate relatives to join you in the U.S.  You also cannot travel outside the U.S. if you win your case under Withholding of Removal.

 

What is protection under the Convention Against Torture (CAT) and how is it different from asylum?

You will receive some, but not all, of the same benefits as asylum if you qualify for CAT. For example, you will be allowed to apply for and renew a work permit, but you will not be allowed to apply for adjustment of status (green card) or U.S. citizenship. Additionally, unlike asylum, a grant of CAT does not allow you to apply for certain immediate relatives to join you in the U.S.  You also cannot travel outside the U.S. if you win your case under CAT. 

Do I need to hire an attorney to help me with my asylum application?

You do not have to have to an attorney to file your asylum application. However, immigration laws are always changing. All immigration cases, including asylum cases, can be complicated. It’s a good idea to talk with an immigration attorney about your situation (even if you decide not to hire one). An immigration attorney can explain your rights and options.  

Where can I read the law about asylum?

You can read more about asylum in Section 208 of the Immigration and Nationality Act. The University of Houston Law Center's Immigration Clinic has also contributed this presentation on the asylum process.