Political asylum is an application filed with U.S. Citizenship and Immigration Services (USCIS), an agency in the U.S. Department of Homeland Security (DHS), that allows an applicant to seek protection from persecution in their country of nationality.
An applicant must prove the following:
- That the application has been filed within one year of entry into the United States (there are some exceptions to this rule, but generally this is required).
- That the applicant fears being persecuted in his or her country of nationality on account of race, religious beliefs, political opinion, national origin or membership in a particular social group (such as women who have been or risk being subjected to forced circumcision or individuals who face persecution because of sexual orientation).
- That the applicant has experienced persecution on one of these bases in the past or there is a likelihood of future persecution on one of these bases.
If granted, political asylum provides legal status and employment authorization in the United States as well as access to a refugee travel document for international travel.
One year from approval, a person granted political asylum can apply to become a lawful permanent resident. Also, after three years and nine months from approval, assuming all good moral character and time requirements have been met, the person can apply to become a U.S. citizen.
Persecution is a term without a statutory definition in U.S. immigration law. It generally cannot be mere harassment or disadvantage. It must be something more, such as human rights violations, torture, unlawful or political detention, physical violence, or infliction of serious emotional distress.
Threats of harm can also rise to the level of persecution, especially if others similarly situated to an applicant have experienced documented persecution similar to that threatened against an applicant by a similar actor.
Economic hardship and harassment can also be deemed persecution if factors considered as a whole rise to the level of persecution, even if taken separately the incidents may not be serious enough to qualify.
The actor of the persecution must be one that is either from the government itself, or from a group or party that the government is unable or unwilling to control.
Proving this is often a challenge.
Also, an applicant must establish why he or she was specifically targeted by the persecutor. The actions and the actor’s motivation for the persecution must be on one of the protected grounds listed above.
Political asylum is generally not available to someone who cannot prove he or she will be specifically targeted for persecution on the bases listed above. General strife and poor country conditions by themselves do not lead to an asylum application approval.
An applicant must be able to show that he or she has a risk of being specifically targeted for persecution, by whom and on what basis.
The application is filed with a USCIS regional service center, and is then forwarded to a regional USCIS Asylum Office to be scheduled for interview. The applicant will go to the interview to explain to the asylum officer why he or she is afraid to go back to his or her country.
The explanation in the interview must be consistent with other information provided, including the application, any supporting statement and all evidence provided for the applicant to have a chance to succeed.
Generally an answer is not given at the interview, and the applicant will need to plan to either come back to the office to pick up the decision or the decision may in some cases be mailed.
Credibility is a significant issue in political asylum law and policy in the United States. The person can be successful on his or her statement alone if it is sufficiently detailed, plausible and credible.
However, the law also requires an applicant provide documentation that should reasonably be expected to be available and obtainable. If an adjudicator, either an asylum officer or an immigration judge, finds that reasonably available evidence was not provided, that could be a justification for denial.
If the person does not qualify for political asylum, such as because the application was not filed within one year of entry into the United States, there are related applications that may be pursued to seek protection from torture or persecution.
One is withholding of removal, which is only available to individuals facing deportation from the United States.
The other is relief under the Convention Against Torture. While these both offer protection from deportation and employment authorization, they do not lead to permanent residence. The standard of proof is higher as well. An applicant must establish by a preponderance of the evidence that the persecution will occur, who will do it and why.
While an application for political asylum can be difficult to win, those facing persecution may find it to be their only option.
Garry L. Davis, managing attorney for Davis & Associates, a boutique immigration law firm, graduated from the University of Texas School of Law and Brigham Young University. Board certified in immigration and nationality law by the Texas Board of Legal Specialization, he has been selected as a Texas Super Lawyer and for Best Lawyers in America. He served the American Immigration Lawyers Association as the Dallas immigration court liaison and as program co-director for a Texas chapter CLE conference held in Mexico. He has frequently spoken on immigration issues by various organizations.
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