US asylum law for Chinese Nationals by Nicklaus Misiti, Esq.
This article discusses general asylum law with a particular focus on some common claims from China.
To be granted asylum in the United States the applicant must show they have a “well founded fear of persecution" if returned to their home country. Generally asylum has to be claimed within 1 year of entering the US, however, there are exceptions to this filing deadline. The exceptions are beyond the scope of this discussion and if you are past the 1 year deadline you should speak to an attorney before filing. The fear of persecution has to be based upon membership in at least one of the five groups: 1)race, 2) religion, 3) national origin, 4)political opinion, and/or 5) membership in a particular social group.
Few Chinese asylum applications are based upon race. Most such claims are made by ethnic Tibetans or ethnic Koreans whose claims are addressed as part of National Origin which are discussed below.
Typically these claims are made by Christians, Falun Gong, Tibetan Buddhists, Muslim but other religions can qualify if they have been persecuted or fear persecution in the future.
Typical national origin claims from China include Uighurs from Xinjiang, Tibetans, and Koreans.
Political dissent is not allowed in China. There is a history of detaining political activists, torturing, and even killing them. Thus, it is not uncommon to successfully claim asylum for Chinese nationals based upon their political opinion. Also the activism need not occur in China. If a person is active in the US for various democratic groups or speaking out against the Chinese government and would be persecuted if they returned to China based upon this, they may qualify for asylum.
Social group claims basically encompass anyone who would be persecuted but does not fall into one of the other four categories. Homosexuals are an example of people who have successfully claimed asylum because they fear they would be persecuted if returned to their country.
Chinese population policies are also a common reason to claim asylum. The one child policy, fear of sterilization or forced abortion have all lead to valid asylum claims.
Generally asylum applicants are granted an interview with an immigration officer specially trained in immigration law. The officer discusses why they fear returning to their country and asks any questions they may have. If the officer feels they are credible and have a strong claim, they will grant the application. If the officer feels there are still more questions they will refer the case to an immigration judge. The applicant gets a second chance to make their claim to the judge, who can grant or deny the application.
If you are from China or any other country and fear you would be persecuted upon returning you may qualify for asylum. Asylum can lead to work authorization, a green card, and eventually citizenship. It is imperative any potential asylum applicant work with an attorney to ensure their rights are protected and their case is properly prepared. Typical attorney fees run from $1500-$5000 for the initial filing but they are well worth it when your application is approved.