The immigration laws allow for asylum protection to those individuals who have suffered past persecution or have a well-founded fear of future persecution in their native countries on account of their race, religion, nationality, political opinions or membership in a particular social group.
Persecution is the infliction of harm or suffering in a way that is offensive. It encompasses a broad range of acts including human rights violations, detention coupled with physical harm or torture, rape, severe economic deprivation which amounts to total inability to provide a livelihood, threats to one’s life or freedom, and cumulative forms of discrimination or harassment rising to the level of persecution. Persecution does not require a subjective intent to harm the victim, but the applicant for asylum must show that persecution on account of one of the five grounds was at least one central motivation for the persecution.
The persecution must be at the hands of the government or a group or individual which the government is unable to control.
Persecution must be something more than mere inconvenience or threats of harm without the present ability to carry out the threats. Persecution does not include legitimate prosecution for crimes or compulsory military service. In addition, harm from general conditions of civil strife in the native country does not constitute persecution.
If a person has been persecuted in the past on account of one of the enumerated grounds, there is a presumption that the person has a well-founded fear of future persecution. The burden then shifts to the government to show that there has been a fundamental change in circumstances such that the applicant’s fear is no longer reasonable, or that the applicant could reasonably relocate to another part of the applicant’s native country. Even if the government is able to show changed circumstances or an ability to relocate, an individual may still receive asylum protection if the applicant can demonstrate past persecution that is so severe that there are compelling reasons for the applicant’s unwillingness to return.
If a person has not suffered past persecution, he or she may still be eligible for asylum based on a well founded fear of future persecution on account of one of the five grounds above. The person must have a subjective fear, and this fear must be substantiated by objective evidence. The United States Citizenship and Immigration Service (USCIS) or immigration judge will evaluate the objective basis of the fear by means of examining the Department of State Country Condition Reports, expert testimony, and other documentary evidence.
A person should be granted asylum if he or she can show a reasonable possibility of persecution which the Supreme Court has defined as a 10% chance.
In addition to showing eligibility for asylum, the individual must demonstrate that he or she merits a favorable exercise of discretion. In other words, asylum is not mandatory and can be denied on discretionary grounds.
There are certain grounds that result in mandatory denial of asylum applications. Those grounds include:
- An applicant for asylum who has participated in the persecution of others;
- An applicant who has been convicted of a particularly serious crime including aggravated felonies;
- An applicant who is a national security risk;
- An applicant who has committed a serious nonpolitical crime outside the U.S.;
- An applicant who has engaged in terrorist activity, including material support to a terrorist organization;
- An applicant who failed to file for asylum within one year of entry (with very limited exceptions);
- An applicant who firmly resettled in a third country prior to entering the U.S.;
- An applicant who can be removed to a safe third country;
- An applicant who has previously been denied asylum unless the individual can show changed circumstances.
After a grant of asylum, the individual is entitled to remain in the U.S. and has work authorization incident to the grant of asylum status. It is not necessary to apply for a work authorization card. The individual also qualifies for certain federal means tested public benefits. Once granted asylum, the individual may apply for his spouse and minor children to join him or her in the U.S.. After one full year in asylum status, the individual may apply for permanent residence.