ASYLUM BASICS

This article is a background on the process of applying for political asylum once an alien is in the United States.  There are several ways to apply for asylum and/or refugee status.  Nothing in this article is intended to be legal advice, and anyone wishing to apply for asylum or any other immigration benefit should consult a licensed immigration practitioner for specific advice about a case.

Before World War II, there was no specific provision in United States law for refugees to be admitted to the United States.  In the aftermath of that world wide conflict, however, it was recognized that the U.S. needed to shoulder a share of responsibility for displaced persons who could not remain in their own countries safely because of repressive regimes or wide spread violence.  One of the ways with which this was dealt was the enactment of political asylum or refugee laws. 

Applying for asylum or refugee status is often done at a U.S. embassy overseas or at the border when the alien attempts to enter the United States.  If done at the border, an asylum officer will make a "credible fear" determination, and if he or she determines that the alien does have a credible fear of persecution the officer will refer the case to an immigration judge and often "parole" the alien into the U.S. so he or she can apply for asylum.

If an alien enters the United States, by whatever method, without being referred to an immigration judge or put into removal proceedings, files an application for asylum with the service center having jurisdiction over the alien's place of residence.  This application must be filed within one year of entry into the United States.  This is a very important provision of law to remember, as if an alien waits too long, he or she may be statutorily ineligible for asylum, no matter how good a claim the alien can make.  Once filed the asylum file is sent to an asylum office in the I.N.S. District in which the alien lives. (The asylum office for the Tampa area is in Miami.)  The alien will be scheduled for an interview with an asylum officer at that facility.  An alien may file for work authorization five months after filing the asylum application, even if the application has not yet been adjudicated.

To make a valid asylum claim, there are four elements that should be established:

• Fear of persecution;
• The fear must be well‑founded;
• The persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion; and
• Inability to return to the country of nationality or last residence because of persecution or a well‑founded fear of persecution.

There has been much litigation regarding these elements and what constitutes a valid asylum claim.  Cases are reviewed under a "totality of factors" test, and many things can be considered under this test.  (A discussion of all the possible discretionary factors would take several articles to complete.)  The upshot of all this is that there are very few clear-cut asylum claims and each one must be reviewed on a case-by-case basis.  That being said, there is one clear case under the law.  The statute grants presumptive eligibility for asylum for people who have been forced to abort a pregnancy or to undergo involuntary sterilization, or who have been persecuted for failing or refusing to undergo such a procedure or for other resistance to a coercive population control program. 

There are a couple of other things that should be remembered about asylum claims.  First, asylum will not be granted to anyone who "ordered, incited, assisted, or otherwise participated in the persecution of any person."  Second, a person who has committed a "particularly serious crime," such as most aggravated felonies, will not be eligible for asylum.  Third, If an asylum claim is denied by the asylum officer, the case is referred to an immigration judge, and the alien is put into removal proceedings.  If the immigration judge also denies the asylum claim, the alien can end up being deported from the United States. 

Finally, there is a specific prohibition on filing "frivolous" asylum claims.  A claim is frivolous if any of the material elements of the application are deliberately fabricated.  If an immigration judge or the Board of Immigration Appeals makes such a finding, the alien is barred permanently from receiving any immigration benefit at all.

Asylum is a good option for people who sincerely fear returning to their home country based upon the above factors, as it allows for work authorization and eventual adjustment of status to permanent residence.  However a potential asylum seeker should contact a licensed immigration practitioner to evaluate the case and aid in avoiding the pitfalls that may be present in a relatively complex area of the immigration law.