The industrialized world is experiencing an influx of asylum applicants. The Office of the United Nations High Commissioner for Refugees has reported a 22-year high in the number of asylum applications filed in industrialized countries, with a 45% increase between 2013 and 2014 alone. According to the U.N., this influx is due to the war in Syria and Iraq as well as other armed conflicts, human rights violations, and deteriorating security and humanitarian conditions around the world.
The increase in asylum applications can also be seen in the United States. In fact, the United States Citizenship and Immigration Services (USCIS) has responded by increasing the number of asylum officers by 65% from its 2013 levels. With a higher demand for asylum in the U.S., it is important to review the requirements the USCIS places on those seeking asylum.
What is asylum?
Asylum is an immigration benefit available to certain individuals who seek protection from persecution or fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion. Asylees are allowed to remain in the U.S. indefinitely and are eligible to apply for permanent residence (green card) after one year of being granted asylum. Those whose asylum application is pending for 150 days or more may also apply for an employment authorization document and work in the U.S. while their applications are being processed.
What do you have to show to obtain asylum in the U.S.?
The asylum process is relatively straightforward. However, due to the almost infinite number of scenarios possible, some of the requirements lack exact definitions and it is always best to consult a qualified immigration attorney before submitting an asylum application. Some of the overarching requirements for all cases are described below:
Prior to 1998, there was no deadline imposed on how long a person could be present in the United States prior to forfeiting his or her right to apply for asylum. However, since April 1, 1998, individuals seeking asylum in the U.S. must do so within one year of their arrival. The application must be received by the USCIS by the same date of the next calendar year. If clear and convincing documentary evidence is presented, the mailing date can be considered as the date of filing. Accordingly, a person who enters the U.S. on May 1, 2015, must file his or her application by May 1, 2016. There are two notable exceptions for those facing changed circumstances that materially affect eligibility for asylum and those affected by extraordinary circumstances relating to the delay in filing.
Changed conditions in the applicant’s country of nationality or, if stateless, the applicant’s country of last habitual residence
Changes in applicable U.S. law
Changes in the applicant’s personal circumstances, such as recent political activism, conversion from one religion to another, etc.
The ending of the applicant’s spousal or parent-child relationship to the principal applicant in a previous application
(2) Extraordinary Circumstances
The USCIS recognizes that circumstances beyond the applicant’s control may cause him or her to miss the filing deadline. To maintain eligibility, the applicant must show the existence of an extraordinary circumstance that is directly related to the failure to timely file and which was not intentionally created by the applicant. The applicant must also establish that the late application was filed within a reasonable time.
The hallmark requirement for asylum is based on fear of future persecution. Specifically, the applicant must establish (1) a well-founded fear (2) of future persecution (3) on account of race, religion, nationality, membership in a particular social group, or political opinion.
(1) Well-Founded Fear
As noted, a fear of future persecution must be well-founded. The USCIS applies four criteria in evaluating a claim of well-founded fear: (1) possession of a characteristic the persecutor seeks to overcome, (2) persecutor’s awareness or ability to become aware that the applicant possesses the characteristic, (3) persecutor’s capability to persecute the applicant, and (4) the extent to which the persecutor has the ability to enforce its will throughout the country.
In the event the applicant can establish incidents of past persecution, a rebuttable presumption of future persecution will apply. The government can rebut this presumption by establishing that the circumstances in the country have changed to no longer pose a danger to the applicant or by showing that the applicant could reasonably live in a separate part of the country and be safe from persecution. If persecution is government sponsored, there is a rebuttable presumption that relocation is not feasible.
The U.S. Court of Appeals for the Seventh Circuit has noted that persecution is “the use of significant physical force against a person's body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity.” Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011). Similarly, the Ninth Circuit has defined persecution as the “infliction of suffering or harm upon those who differ . . . in a way regarded as offensive” and “oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate.” Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Hernandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985). While discrimination and harassment are generally not considered to be persecution, the courts have also ruled that cumulative instances of harassment or discrimination, considered in totality, may amount to persecution.
(3) Nexus to Protected Characteristics
As noted above, an applicant’s fear of persecution must be linked to one of the five protected characteristics. Specifically, as the USCIS indicates, the applicant must establish that the persecutor was, or will be, motivated to harm the applicant because of his or her race, religion, nationality, membership in a particular social group, or political opinion.
It is important to note that every asylum case is different and not all of the applicable rules and regulations could be listed in this post. If you are interested in receiving advice regarding your asylum claim, contact us at 1-844-HOLBORN and one of our immigration attorneys will be happy to assist you.
Disclaimer: This post is meant for general informational purposes only, and it is not to be construed as legal advice. As with any laws, the information in this blog post may change at any time and may apply differently in different jurisdictions. The post may constitute Attorney Advertising as defined by the rules of professional responsibility of some jurisdictions. Holborn Law is based in Orange County and Riverside. The attorneys of Holborn Law APC are active members of the State Bar of California and licensed to practice law in California. All services relating to immigration and naturalization provided by Holborn Law APC are provided by active members of the State Bar of California or by a person under the supervision of an active member of the State Bar of California.