Who Is Eligible for Asylum or Refugee Protection in the United States?

Asylum and refugee status are legal protections granted to people who have fled their home country for their safety and are afraid to return to any part of that country. People who flee their home countries due to persecution may apply for asylum in the United States. If they are granted asylum, they will be provided with protection and the right to remain in the United States.

Persecution can be defined as harm or threats of harm to you, your family, or people who are similar to you. A person may also seek asylum if he or she has previously faced persecution in his or her home country. You can only obtain asylum if one of the reasons someone harmed or may harm you is because of your race, religion, nationality, political opinion (or a political opinion someone believes you have), or membership in a “specific social group.”

What is the distinction between asylum and refugee status in U.S. immigration law?

It depends on where you are at the time of application. People living outside the United States must apply for refugee status, which is usually done through the United Nations High Commission for Refugees. The President of the United States sets an annual limit on total approvals. People who have already crossed the border or entered the United States (either legally or illegally) can, in theory, apply for asylum. Once granted, both refugee and asylee statuses allow a person to remain in the United States indefinitely. Asylees and refugees are allowed to work and apply for a green card within one year of entering the United States as refugees or being granted asylum.

Types of Asylum

The two ways of obtaining asylum in the United States are the affirmative process and the defensive process (see USCIS website for more information). The affirmative asylum process is for people who are not in removal proceedings. In contrast, the defensive asylum process is for people in removal proceedings. When the United States government orders your removal (deportation) from the country, you are in removal proceedings.

Affirmative Asylum Processing with USCIS

Regardless of the present immigration status, a person physically present in the United States and not in removal proceedings may apply for asylum proactively through the United States government via the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS).

Applicants must apply for asylum within one year of the date of their last arrival in the United States unless they can show:

•  Changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances relating to the delay in filing; and

• They filed within a reasonable amount of time, given those circumstances.

If the USCIS asylum officer denies the applicant’s asylum request, the applicant moves to removal proceedings. In that case, they may renew the request for asylum through the defensive process and appear before an immigration judge.

Defensive Asylum Processing with EOIR

When individuals file a defensive asylum claim, they attempt to avoid deportation from the United States. For asylum processing to be defensive, someone must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).

Individuals are generally placed into defensive asylum processing in one of two ways:

  1. They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or
  2. They are placed in removal proceedings because they: 
  • were apprehended in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status; or
  • were apprehended by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an asylum officer. 

Immigration judges hear defensive asylum cases in adversarial (courtroom-like) proceedings. The judge will listen to arguments from both of the following parties: 

  •  Applicants (and their attorney, if represented) 
  •  The U.S. government, which is represented by an attorney from U.S. Immigration and Customs Enforcement (ICE)

The immigration judge will grant individuals asylum if they can demonstrate their eligibility. If individuals are not eligible for asylum, the immigration judge will consider whether they qualify for any other forms of protection from deportation. Considering that the immigration judge determines applicants’ ineligibility for alternative forms of relief, applicants will be deported from the United States. Finally, the decision of the immigration judge might be appealed by either side.

In Seeking Asylum In The USA, Professional Help Is The Best Way To Proceed

A knowledgeable immigration attorney who understands how to prepare properly, file, and present an asylum claim can significantly increase an individual’s chances of receiving asylum status by the U.S. government.

The U.S. immigration system presents significant challenges for asylum seekers. If you are thinking about applying for asylum, you should consult with an immigration lawyer to help you through the process. Having an experienced attorney on your side can mean the difference between staying in America and being deported.

Attorney Profile

Raju Mahajan
Raju Mahajan, Esq.

Principle Attorney and Owner

-JD from LMU Duncan School of Law
-MA from West Virginia State University

Bar Admissions
-Washington DC

Memberships and Affiliations
-American Bar Association
-South Asian Bar Association
-The National Lawyers Guild (NLG).
-American Immigration Lawyers Association (AILA)

Fluent in English and Bengali

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