Asylum

Individuals who believe that returning to their home country would endanger themselves physically or mentally may apply for asylum in the United States. A grant of asylum permits the asylee to remain in the United States in valid status with employment authorization incident to status. The asylee may apply for adjustment of status to permanent resident after living in the United State for one year after the date of the grant of asylum. The waiting period for adjustment of status to permanent resident can take many years due to a limit on the number of asylees who can become permanent residents each year. An individual is eligible for a discretionary grant of asylum if he meets the definition of a "refugee" in the Immigration and Nationality Act, is eligible for a favorable exercise of discretion, and is not barred for other reasons from obtaining asylum. The definition of a "refugee" in the Immigration and Nationality Act is:

Any person who is outside of any country of such person's nationality or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The standard for persecution is expansive and encompasses a broad range of acts. Infliction of harm or suffering by a government, or persons a government is unwilling or unable to control, to overcome a characteristic of the victim constitutes persecution. Serious human rights violations have been found to be persecution. The threat the applicant for asylum fears must be a country-wide threat. If the asylum applicant could internally relocate in his home country, and thereby escape the threat of persecution, a grant of asylum is not warranted. When an asylum applicant shows past persecution, he meets the definition of a refugee and is eligible for a grant of asylum. A well-founded fear of future persecution is then relevant to the favorable exercise of discretion to grant asylum. An asylum applicant who has not suffered past persecution may still be eligible for asylum based on a fear of future persecution. This fear must be subjectively real and objectively reasonable.

There is a one year filing deadline for asylum applications: the asylum application must be filed prior to the one year anniversary of the applicant's entry of the United States. There are exceptions to the one year filing deadline: Maintenance of valid status is one of the exceptions to the one year filing deadline. In other words, if the applicant has maintained valid immigration status in the United States, he may apply after the one year filing deadline. Changed circumstances and exceptional circumstances also constitute exceptions to the one year filing deadline. Political conditions may change in the applicant's home country and make the filing of the application after the one year deadline necessary.

There are two types of asylum applications: affirmative applications and defensive applications. The affirmative asylum application is filed with the asylum designated service center for the region where the applicant lives and is sent to the regional asylum hearing office. An interview is scheduled and the applicant appears at the hearing to present his case. Asylum cases filed from Pennsylvania and West Virginia are interviewed at the U.S. Citizenship and Immigration Services Asylum Office in Arlington, Virginia. An attorney often works with the applicant to prepare the asylum case and accompanies the applicant to the asylum interview. The interview can last for an hour or more. Interpreters are needed if the applicant cannot speak English fluently. The applicant must provide the translator. If the applicant is in status, the decision will be mailed to the applicant within a few weeks of the interview. If the asylum applicant is out of status, the decision must be picked up at the asylum office by the applicant. If an in status applicant's petition is likely to be denied, a notice of intent to deny is mailed to the applicant. The applicant then has time in which to respond to the notice of intent to deny. If the asylum petition is denied after the in status applicant responds to the notice of intent to deny, the applicant may apply for asylum again. If the out of status applicant is given a denial notice at the asylum office, the applicant is referred to immigration court where the applicant may present his asylum case to the immigration judge.