Political asylum is a form of protection in the United States for people who fear persecution, or who have been persecuted, in their own country on certain grounds. Being granted asylum can give a person the chance to stay in the United States lawfully and, later, to apply for permanent residence.
The asylum process is difficult and calls for convincing evidence. It is not enough to describe what happened: you also have to show why there is a real risk of persecution, or why the applicant has already been persecuted.
What political asylum is
Under American law, asylum is granted to a foreign national who is in the United States, or arriving in the country, and who meets the legal definition of a refugee.
To obtain asylum you have to prove that you have been persecuted, or have a well-founded fear of persecution, in your own country on one or more protected grounds.
These are:
- race;
- religion;
- nationality;
- membership of a particular social group;
- political opinion.
That is why the phrase "political asylum" is common in everyday speech, although in law the grounds for asylum go a good deal wider than political activity alone.
Who can apply for asylum
Anyone who is in the United States and meets the requirements of American immigration law can apply for asylum. You have to show a link between the persecution you describe and one of the protected grounds.
Political activity, for example, can be the reason for persecution on the ground of political opinion. But taking part in political activity, or holding political views, does not by itself mean an automatic right to asylum. Every case is considered on its own particular facts.
What counts as persecution
American immigration law does not limit persecution to physical violence. Depending on the circumstances, threats, unlawful detention, torture, serious restrictions on liberty, sustained pressure and other acts may all count.
At the same time, a single unpleasant episode or an ordinary dispute does not always meet the legal meaning of persecution. It is very important to show the scale of what has been happening, how long it went on, how serious it was, and its link to a protected ground.
Fear of future persecution
An applicant does not have to prove that persecution has already taken place. In some cases asylum can be granted on the basis of a well-founded fear of future persecution. The person has to show why returning to the country would put them in real danger, and why that risk is connected to one of the grounds set out in law.
The assessment can take into account the situation in the country, the applicant's own circumstances, past events, threats and other evidence.
What evidence is needed
Evidence matters a great deal in an asylum case.
Depending on the situation, this can include:
- records of detention;
- medical records;
- photographs;
- messages and correspondence;
- press coverage;
- documents about political or public activity;
- court or administrative documents;
- witness statements;
- statements from relatives and acquaintances;
- material about the situation in the country;
- publications by human rights organisations;
- other documents that support the applicant's account.
Having no official documents does not mean an automatic refusal. In some cases the applicant's own detailed and consistent testimony, together with other indirect evidence, carries considerable weight.
Why the personal account matters
An asylum application has to set out the person's story in a consistent way.
It is important to explain:
- what happened;
- when and where it happened;
- who was involved;
- why the applicant was targeted;
- what the consequences were;
- whether the person sought help;
- why the authorities could not or would not protect them;
- why returning to the country is dangerous.
Contradictions in dates, events and other material circumstances can seriously affect how credible the application looks.
The one-year rule
One of the key rules of asylum in the United States concerns the deadline. As a rule, Form I-589 has to be filed within one year of your last entry to the United States. There are exceptions, though, tied to changed circumstances or extraordinary circumstances, which can allow a later application.
If the year has already passed, do not simply assume that the chance to apply has gone for good. Check whether an exception applies to your particular situation.
Form I-589
The main form for an asylum application is Form I-589, Application for Asylum and for Withholding of Removal. The application sets out information about the applicant, their family, where they have lived, their travel, any previous applications and the circumstances of the persecution.
A detailed written statement is attached to the form, explaining the person's story and the grounds on which they are asking for protection.
Can family be included
In certain cases the main applicant can include their spouse and unmarried children under 21 in the application. That allows derivative protection for family members to be considered. Where asylum has already been granted, there are separate procedures for reuniting with eligible family members afterwards.
How the process works
There are two main ways an application is considered. Affirmative asylum — the application is filed with USCIS when the person is not in removal proceedings. Defensive asylum — the person asks for asylum as part of immigration proceedings in immigration court. Which process applies determines which body decides the case and what happens next.
Affirmative asylum
With affirmative asylum the applicant files Form I-589 with USCIS. A biometrics appointment and an interview with a USCIS officer may then be scheduled. At the interview the applicant answers questions about their account, the circumstances of the persecution and their fear of return.
Depending on the particular circumstances, USCIS then makes a decision or refers the case to immigration court.
Defensive asylum
If a person is already in removal proceedings, the asylum application is heard in immigration court. The applicant presents their account to the judge and produces evidence. The process can involve several hearings, filings, witness testimony and other procedural steps.
Depending on the court's decision and the facts of the case, there may be scope for a further appeal.
The asylum interview
The interview is one of the most important stages of affirmative asylum. The USCIS officer may ask in detail about the events set out in the application. The applicant should be ready to explain their account consistently and truthfully.
Do not try to memorise an artificial script or invent extra events. Everything you say must match what actually happened.
Interpreters
If an applicant's English is not good enough, an interpreter may be needed at certain stages of the process. Getting the legal and factual details of the account across correctly matters especially. A mistranslation can lead to material facts of the case being misunderstood.
Can you work while you wait
Filing an asylum application does not by itself give permission to work. Once the conditions set out have been met, the applicant may become eligible to apply for an Employment Authorization Document (EAD).
The rules on timing and on eligibility for a work permit can change, so check the current requirements immediately before you file.
What happens once asylum is granted
Once asylum has been granted, the person holds protected status in the United States. An asylee can be in the country lawfully and, subject to the rules, work. An approved applicant can also be reunited with certain family members through the procedures provided for.
A Green Card after asylum
Being granted asylum does not mean a Green Card automatically. After asylum has been granted, the applicant may, once the necessary conditions are met, apply to adjust status to permanent resident.
There is a separate procedure for this.
Once they hold a Green Card, the person is a permanent resident of the United States and can go on to consider naturalisation.
Can you obtain citizenship
Yes. In time an asylee can go from the grant of asylum to permanent status and then to US citizenship, provided all the requirements for naturalisation are met. Citizenship requires compliance with the law, including the requirements on residence and physical presence in the United States.
What can lead to a refusal
Refusals happen for various reasons. A problem may arise, for example, if the applicant could not prove the necessary link between the persecution and a protected ground, gave inconsistent information, or could not convincingly show that a risk exists.
There are also statutory bars and grounds for refusing asylum. So even a genuine history of persecution does not mean an application will automatically be approved.
Safe third country and other restrictions
US immigration law provides for various restrictions and exceptions that can affect a person's eligibility for asylum. Depending on the circumstances, previous applications, status in other countries, particular acts by the applicant, a criminal record and other factors may all matter.
Separate rules can apply to people who have already been given protection, or who could obtain it, in another country.
Can you travel outside the United States
While an asylum application is pending, travel outside the United States calls for particular care. Leaving without the appropriate permission can affect whether the case can go on. Even with travel permission, returning to the country you are asking for protection from can raise serious questions about whether the fear of persecution you claim is genuine. It is therefore advisable to take professional advice before travelling abroad.
Can you visit your own country once asylum is granted
Returning to the country you asked for protection from can have serious immigration consequences. The US authorities may treat such a trip as something that casts doubt on your fear of persecution. This matters especially once asylum and a Green Card have been granted. Weigh the possible consequences carefully before travelling to your country of origin.
Why it is worth going to an immigration lawyer
Asylum cases often need a detailed analysis of the facts and of the law. Situations involving a late filing, previous refusals, being in removal proceedings, criminal issues, several countries of residence or inconsistencies in documents can be particularly difficult.
An immigration lawyer can help work out the right legal strategy, prepare the documents and present the applicant's account in the way the law requires.
The main points
Political asylum in the United States is a mechanism for protecting people who have been persecuted, or who have a well-founded fear of persecution, because of race, religion, nationality, political opinion or membership of a particular social group.
Applications are usually made on Form I-589, and in most cases the application must be filed within one year of your last entry to the United States, unless an exception provided for by law applies.
A successful asylum claim can be the foundation for a Green Card later and, after that, for US citizenship. Every case is different, though, and mistakes in the account, the documents or the timing can have serious consequences. Immigration rules and procedures can change. Before you file, check the current information from USCIS and take advice from a qualified immigration specialist.
End of the article.
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