Who is eligible for Asylum?

The asylum process is a legal process and like many legal processes, it can be complicated. For a foreigner wondering if they are a potential candidate for asylum, it can seem a little overwhelming. The goal of this article is to try to explain who could be eligible for asylum in a simple and easy to understand way. There are four basic requirements to be eligible for asylum, as outlined below. If you meet the basic requirements, you will really need to consider in more depth, the additional factors outlined at the end of the article.

The first thing is first. To be eligible for asylum you have to be:

  1. A foreign alien living in the United States.

If you aren’t currently in the United States, you aren’t eligible for asylum. However, you may be eligible for a a refugee petition, if you fit the other criteria for asylum. A refugee petition is very similar to asylum but it is for foreign aliens who are not yet living or physically present in the United States. Do not worry if you didn’t officially enter the United States through customs, or if you’re undocumented. You can still apply for asylum.

  1. You have been in the United States for less than a year.

It is very important that you apply for asylum within one year of your arrival into the United States. If you don’t, it may be impossible for you to apply; unless there is a very good reason (extraordinary circumstances in legal terms), why you didn’t apply within a year of your arrival in the United States.

If you fit this criteria, meaning you are a foreign alien living in the United States who has been here for less than a year, you will also need to meet one of the following requirements (either 3A or 3B on this list), to have a reasonable chance of being eligible for asylum.

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EITHER:

3A. You have been harmed (persecuted in legal terms) in your home country; or in the country you last lived in (if you don’t have a home country), because of your race or nationality, or for some other reason that is hard or impossible for you to change about yourself *.

Harmed because of something impossible to change about yourself. You are gay, a member of the LGBT community, or you’re a member of some other identifiable social group–called a Particular Social Group in legal terms (like an indigenous tribe for example), and you were harmed because of this.

* This harm requirement is found in section 101(a)(42)(A) of the Immigration and Nationality Act. Available here.

NOTE- the Particular Social Group category for asylum seekers is very broad. If you are unsure if you qualify, please see the article on the Particular Social Group for more detailed information and the types of groups that have historically been found eligible.

OR,

You were harmed because of something you shouldn’t have to change about yourself. You were harmed because of your religion or your political beliefs. Political Asylum can be a very complicated subject matter for asylum seekers and lawyers alike. Please see our article on political asylum for more information.

So what does Harm mean for Asylum?

Harm means “Persecution” in a legal sense, and this has a complicated legal definition. The harm has to rise to the “level of persecution, defined as the infliction of suffering or harm in a way regarded as offensive.” The harm could be physical, it could be economic, and it doesn’t need to be harm caused to you by the government; but rather, it can be any harm caused to you “by persons the government is unable or unwilling to control.” *

The information from this paragraph was obtained from Richard Boswell’s Third Edition of, Essentials of Immigration Law (copyright 2006-2012), on page. 90.

If you meet either of these harm requirements, you may be eligible for asylum. It will depend on more factors, but if you have been harmed because of one of the reasons outlined above–before coming to the United States, it will be important for you to further consider your eligibility for Asylum.  

 

IF YOU HAVEN’T BEEN HARMEDyou may still be eligible to apply if:

3B. YOU FEAR YOU WILL BE HARMED if you are forced to return to your home country; or the country that you last lived in (if you don’t have a home country), because of your race or nationality or one of the other reasons outlined above: political beliefs, member of a particular social group, religion, etc…

This fear of future persecution will have to be “well-founded.” You as the applicant will need to not only have to have the fear and be able to convince the authorities that you have it, but the fear will have to be a reasonable one. So under your circumstances would it be a reasonable fear to have? This is a very complex and nuanced thing to prove in some cases, and the help of an experienced attorney may prove valuable or essential to your claim.

 

THE LAST BASIC REQUIREMENT FOR ASYLUM ELIGIBILITY:

 4. You are unwilling, you cannot return, or do not want to return to your home country (or country where you last lived if you don’t have a nationality), because of the harm you have faced, or the harm you believe you will face, if you are forced to return.

Now that we have considered the four basic requirements for asylum, let’s get into some of the more subjective factors. If you believe you meet the four requirements above, that is a very good sign for your asylum eligibility. However, it is possible that even if you meet these factors, sadly, you could be ineligible for asylum for one of many reasons.

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Factors that could make you ineligible to apply for asylum:

– Safe Third Country. If before coming to the United States, you resided in a country where you were safe from harm, and there are similar procedures in place for asylum and other types of similar immigration relief available in that country, you may be ineligible to apply in the United States. If you were physically present in a third country before coming to the United States, and are unsure whether you were living in that country, please see our article, Was I permanently resettled in a safe third country, so as to make me ineligible for asylum? Alternatively, or in addition to reading this article, consult with an experienced immigration attorney about your circumstances. This can be a very tricky area of asylum law.

– You participated in harming other people because of their race, religion, nationality, membership in a particular social group, or political opinion. If you participated in harming other people because of things they cannot, or shouldn’t have to change about themselves, you will be ineligible for asylum.

– You were convicted of a “Particularly Serious Crime.” If you were convicted, meaning a court decided you were guilty of a crime that is considered to make you dangerous to the community, or if you were convicted of what is considered an aggravated felony, you may be ineligible to apply. If you have been convicted of a crime either in the United States, or in your home country, and are unsure whether that crime makes you ineligible for asylum, please see our article: Does the Crime I Committed make me ineligible for asylum? Alternatively or additionally, consult with an experienced immigration attorney about your particular circumstances.

* NOTE-If the crime you committed in your home country (or country where you last resided if you don’t have a home country), was or can be considered “political” in nature, you still may be eligible for asylum. The United States favors religious and political freedom, so conviction for your political beliefs may be considered not as crime, but actually as persecution that could make you eligible for asylum. Please see our article on Political Asylum.

– You are a danger to the United States. If the authorities believe this, and have reasonable reasons for believing so, you will be found ineligible. Former ties to terrorist groups and a background in such, or similar groups, will almost certainly make you ineligible.

To summarize, if you meet the four basic requirements outlined in the first part of this article, and you don’t believe yourself to be ineligible because of the factors above, you may have a very promising asylum case and a potential path to working and living in the United States. Asylum law is incredibly complicated however, and there is no substitute for the advice of an experienced immigration attorney. This article is simply intended to give you a basic overview of the basic eligibility for asylum claims. This article is not legal advice, but rather legal information. There is no guarantee that everything in it will be correct, or the most up to date information.

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