This guide help explain who is eligible for asylum.
What Is Asylum?Asylum is a process where a person leaves her native country to another country seeking protection and refugee. The person who applies for asylum is called an asylee. Each year, there are thousands of people applying for asylum in the U.S. According to National Immigration Forum, 220,000 asylum applications were filed in 2016.
Types of Asylum?There are two types asylum in the U.S. – Affirmative Asylum and Defensive Asylum.
Affirmative Asylum is what people hear often on the news, something like people arriving at or crossing the U.S. border and apply for asylum. The law, 8 U.S. Code Section 1158(a)(10 requires the asylum seeker must be physically present in the U.S. in order to apply for asylum. Thus, if you are outside the U.S. territory, you cannot apply for asylum. The U.S. territory can include U.S land and waters, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Thus, individuals are physically present in those areas can apply for asylum. In the past, there were confusions about whether one can apply for asylum in the U.S. Embassies or Consulate. The short answer is no. However, U.S. Embassies and Consulates are privileged with immunity from hosting countries.
To be eligible for asylum, applicants must demonstrate that (1) he is unable or unwilling to return to her home country because of past persecution, or (2) a well-founded fear of persecution because of her (a) race, religion, nationality, membership in a particular social group, or political opinion. Generally, affirmative asylum must be filed within the first year of arrival in the U.S. If you need to file an asylum application after year of your entry in the U.S. you must meet certain requirements. (1) You could not apply within one year because changed circumstances that materially affect your eligibility for asylum or extraordinary circumstances relating to the delay in filing. (2) You filed within a reasonable amount of time given those circumstances.
What Consitutes Persecution?The Immigration and Nationality Act does not define persecution. In the published case laws, Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004), the court attempted to characterize Persecution as an extreme concept where infliction of suffering or harm upon those who have different because of race, religion, or political opinion in a way regarded as offensive. This broad definition of persecution is fact dependent. No specific actions or inactions can be deemed persecution per se. The Court in Kovac v. INS, 407 F2d 102, 107 (9th Cir. 1969) also found that minor disadvantages or trivial inconveniences do not rise to the level of persecution.