People who have fled their country because they fear persecution may seek asylum so they may remain in the United States. Unlike other parts of immigration law, asylum and asylum-related protections are derived from international refugee law. International refugee law is designed to serve as substitute protection where the person’s own country has failed to protect the individual either because the country is unable or unwilling to protect an individual from persecution. This article explains the difference between being a refugee and the process required to seek asylum in the United States. The article also explains the importance of using an experienced immigration attorney to guide applicants through a process that on its face may appear to be relatively simple.
Refugee vs Asylum
The 1951 and 1967 United Nations Conventions and Protocols define a refugee as:
Refugees are those people who are overseas and have fled their own country, often to a neighboring country, and seek refuge in the United States. An asylee is someone who first comes to the U.S., then seeks protection, and a refugee is someone who seeks protection of the U.S. while still outside the United States.
Eligibility for Asylum
To be eligible for asylum in the United states, an applicant must first meet the definition of a refugee. In addition, the applicant must be living in the United States for less than one year and meet the following requirements:
Although at first glance the elements for asylum appear straightforward, each element presents a unique challenge. Each of the five elements is crafted based on statute, regulations, Board of Immigration Appeals and Federal Court decisions along with international law.
For example, “persecution” as required by the application is different from “prosecution” as many applicants mistakenly understand the use of the term. “Prosecution” is punishment any citizen receives for breaking the laws of their country. “Persecution” means to harass or punish in a manner designed to injure, grieve or afflict with intent to cause suffering because of belief. If “prosecution” is politically motivated or another enumerated ground and is sufficiently severe under a legitimate law it may be “persecution” sufficient to establish an asylum claim. However, many applicants do not understand the proper use of the term “persecution” on the application or do not provide sufficient information to substantiate their persecution claims. In addition, it’s important to delineate between past and future persecution as a basis for seeking asylum which many applicants also do not understand.
If an application is not properly filed it may be sent to an immigration judge and a hearing will be scheduled for the applicant to explain the insufficiencies of their application. If the application is denied, the applicant may appeal the decision, however, chances of success on appeal are very low. Therefore, it is important to consult with an experienced attorney that understands the process and will correctly file the application to avoid complicating the process.
Ryan A. Hintzen
The Hintzen Law Firm, PLLC