Asylum can be brought either:

1. as an affirmative application by someone who has not been apprehended by the immigration authorities; or
2. as a defense in removal proceedings.

To be granted asylum, a person must meet the U.S. definition of refugee (based on the 1951 Convention Relating to the Status of Refugees/1967 Protocol):

 …any person who is outside of any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Checklist for refugee eligibility:

• Living outside of country of origin.
• Unable or unwilling to return because of past persecution OR because of a well-founded fear of persecution.
• Persecution or fear of persecution is based on one of these five grounds: 1. Race 2. Religion 3. Nationality 4. Membership in a particular social group 5. Political opinion

Well-founded fear means a person must actually fear returning to his or her country and there must be an objective basis for such fear, which has two components:

• Subjective component: individual should demonstrate that s/he genuinely feels fear.
• Objective component: the fear must be based on facts. It must be well-founded. The applicant should present specific facts through objective evidence or credible testimony. These facts should show that a reasonable person in the applicant’s circumstances would fear persecution.

Persecution does not have a set definition per either the Geneva Convention or the United Nations High Commissioner for Refugees (UNHCR). The drafters of the U.N. Refugee Convention choose to keep the term “persecution” open-ended and flexible, subject to interpretation according to evolving standards. The UNHCR notes that persecution includes, at a minimum, “ threats to life or freedom,” and should embrace other serious violations of human rights. (See Deborah Anker, Law of Asylum in the United States, p. 171). 

• In determining persecution, human rights standards help to determine international standards of acceptable behavior. U.S. courts have acknowledged that persecution is a flexible concept, one that requires a finding of serious harm, but that is not limited to severe physical harm or threats to life or freedom. (See Deborah Anker, Law of Asylum in the United States, pp. 171-178).
• United States case law per In re Acosta has defined persecution as a showing that “harm and suffering…be inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor sought to overcome.” (In re Acosta, 19 I&N Dec. 211, 222 (BIA, 1985)).

Harm must be more than harassment. Clearly, threats to life and freedom (genocide, slavery, torture, prolonged detention) constitute persecution. Rape, beatings, non-life-threatening violence and physical abuse have also been recognized as forms of persecution.

Persecution could also include: arbitrary interference with privacy, family, home, or correspondence; relegation to substandard dwellings; exclusion from institutions of higher learning; enforced social or civil inactivity; denial of passport; constant surveillance and pressure to become an informant. (INS Basic Law Manual.)

Economic disadvantage alone is generally not enough to constitute persecution, but may be if it is severe (denial of opportunity to earn a livelihood) or if coupled with other evidence of persecution. Determining whether certain mistreatment constitutes persecution also depends in part on the psychological/emotional make-up of the applicant as well as the circumstances of the particular case.

Specific elements of persecution:

1. Individualized Persecution v. Pattern or Practice: Generally an applicant must show that s/he was singled out individually for persecution unless a pattern or practice of persecution of similarly situated persons can be shown.
2. Governmental and Non-governmental Persecution: The persecutor must be a government actor or a non-governmental entity, which the government is unable or unwilling to control.
3. Civil War: Acts of war usually are not considered persecution unless harm is inflicted on account of the victim’s race, religion, nationality, social group or political opinion.
4. Past Persecution: Victims of past persecution can establish eligibility for asylum, even without showing a likelihood of future persecution, based either on humanitarian reasons arising out of the severity of the past persecution or on other serious harm.
5. Persecution Based on Membership in a Particular Social Group: Persecution based on membership in a particular social group requires that all members of the group share some common characteristic. The characteristic must be one that does not change or that you should not have to change, such as skin color, ethnicity, family affiliation or political or religious opinion. These unchanging characteristics are called immutable characteristics. Can you think of some examples of characteristics that you can change and some that you cannot or should not have to change?

Ineligibility

Even if an applicant meets the definition of refugee by demonstrating a well-founded fear of persecution, she may be ineligible for asylum if she has committed a serious crime, persecuted others, or had an offer of safe and permanent resettlement in another country. Per section 208(a)(2) of the Immigration and Naturalization Act (INA), an asylum-seeker may also be ineligible to apply if she: fails to file an application for asylum within one year of arrival in the U.S., has previously been denied asylum by an immigration judge or the board of immigration appeals, or can be removed to a safe third country. There are exceptions to some eligibility requirements if the asylum-seeker can demonstrate changed circumstances or extraordinary circumstances that affected the asylum-seeker’s ability to comply with the requirements for eligibility.

Family Members

An asylum applicant may certain family members such as a child (who is unmarried and under 21 years of age) or a spouse on his/her asylum application.

If the family member is in the U.S. at the time asylum is granted, the family member receives asylum status at the same time as the principle asylum applicant. If the family member is outside the U.S., the asylee may file a petition for their child and/or spouse to bring them to the U.S. The asylee must show proof of the asylees’s relationship to the family member. Once approved, the file is sent to the U.S. Consulate in the family member’s country. After an interview at the consulate, the relative is issued a visa to travel to the U.S. to join their family member.