B
O
C
OVERVIEW
Certain foreign nationals may qualify for asylum/refugee
depending on where they are at the time of their application. If an
immigrant files while in the U.S. and granted asylum, he/she is
called an asylee. If an immigrant files while outside the U.S.,
he/she is called a refugee.
ASYLUM
An immigrant who files for asylum while in the U.S. is an asylee. An
immigrant can avoid removal by applying for asylum due to a well-
founded fear of persecution upon returning to their home country.
The cause of this fear must be based on political opinion, religious
belief, nationality, race, or membership in a particular social group.
The criteria to establish a “well-founded fear” are difficult. Granting
asylum is solely at the discretion of USDOJ. After one year as an
asylee, an immigrant may be eligible to apply for a green card.
The number of immigrants granted asylum is subject to quotas.
REFUGEE
An immigrant who files for asylum from outside the U.S. is a
refugee.
Usually, a refugee applies for asylum outside the U.S. in a refugee
camp.
A refugee can apply for asylum due to a well-founded fear of
persecution in his/her home country. The cause of this fear must
be based on political opinion, religious belief, nationality, race, or
membership in a particular social group.
Usually, the process for refugees is quicker than asylees. This is
because they do not have to prove their status as a refugee since
it is already determined while outside the U.S.
Convention Against Torture and Other Crimes
It is the policy of the United States, in accordance with the United
Nations Convention Against Torture, not to deport any person to a
country in which there are substantial grounds for believing the
person would be in danger of being subjected to torture. The
standard is whether a person would be tortured “more likely than
not” if they were deported to their home country.
Withholding of Removal
Withholding of Removal is a different standard than asylum. It is
based on a probability of harm to the immigrant if he/she is
returned to their specific home country. It allows immigrant to
remain in the U.S but without status and is not eligible for a green
card. Preparing this is more difficult than asylum and the benefits
are less from those given to asylees. However, this relief is
mandated by law if applicant can prove his/her case. This relief is
not subject to quotas.
DEFINITION OF REFUGEE
The Immigration and Nationality Act defines "refugee" in Sec. 101
(a)(42) as:
(A) any person who is outside 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 return to, and 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, or
Social group membership includes such areas as gender and
sexual preference persecution.
(B) in such circumstances as the President after appropriate
consultation (as defined in section 207(e) of this Act) may specify,
any person who is within the country of such person's nationality
or, in the case of a person having no nationality, within the country
in which such person is habitually residing, and who is persecuted
or who has a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
The term "refugee" does not include any person who ordered,
incited, assisted, or otherwise participated in the persecution of
any person on account of race, religion, nationality, membership in
a particular social group, or political opinion.
For purposes of determinations under this Act, a person who has
been forced to abort a pregnancy or to undergo involuntary
sterilization, or who has been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a coercive
population control program, shall be deemed to have been
persecuted on account of political opinion, and a person who has
a well founded fear that he or she will be forced to undergo such a
procedure or subject to persecution for such failure, refusal, or
resistance shall be deemed to have a well founded fear of
persecution on account of political opinion.
REFUGEES VS. ASYLEES
The main difference between refugees and asylees is that
refugees establish this well-founded fear while outside the U.S.,
typically in a refugee camp, and are then relocated to the U.S. to
reside here.
Asylees are individuals who have come to the U.S. with visas or as
illegal entrants and then file for asylum. Their application must
establish their well-founded fear of persecution on account of one
of the five grounds.
The asylum and refugee process is not an easy one; simply
because a country is war torn or in extreme turmoil does not mean
its citizens are eligible to reside in the U.S. as refugees or asylees.
Proving a well-founded fear of persecution is a very difficult
process that is best done with legal counsel. Individuals with
strong claims can sometimes qualify for assistance from a human
rights organization that helps prepare applications on a pro-bono
basis.
A person fearing persecution in their home country can
seek asylum.
To be considered for Asylum, a person must:
If the judge grants asylum, the person is no longer “removable”
and can apply for a green card one year later.
FREQUENT QUESTIONS
Q. Is there a deadline to apply for asylum?
A. To apply for asylum, an immigrant needs to apply within 1 year
of his/her arrival to the U.S. If 1 year has gone by since arriving to
the U.S., an immigrant cannot apply for asylum unless he/she can
show some extraordinary circumstance, or change in
circumstances in their home country.
Q. When do I get a green card if granted asylum?
A. If granted asylum, an immigrant may apply for a green card
after 1 year.
Q. Can I apply for asylum even if I came to the U.S. illegally?
A. Yes. Irrespective of immigrant’s status, an immigrant can still
apply for asylum.
Q. Can I apply for asylum even if I have a criminal record?
A. If an immigrant has committed a serious crime, it could bar
him/her from obtaining an asylum status.
Q. Can I apply for asylum even if I have a criminal
conviction outside the U.S.?
A. If an immigrant has committed a serious crime, even if outside
the U.S., it could bar him/her from obtaining an asylum status.
Certain foreign nationals may qualify for asylum/refugee
depending on where they are at the time of their application. If an
immigrant files while in the U.S. and granted asylum, he/she is
called an asylee. If an immigrant files while outside the U.S.,
he/she is called a refugee.
ASYLUM
An immigrant who files for asylum while in the U.S. is an asylee. An
immigrant can avoid removal by applying for asylum due to a well-
founded fear of persecution upon returning to their home country.
The cause of this fear must be based on political opinion, religious
belief, nationality, race, or membership in a particular social group.
The criteria to establish a “well-founded fear” are difficult. Granting
asylum is solely at the discretion of USDOJ. After one year as an
asylee, an immigrant may be eligible to apply for a green card.
The number of immigrants granted asylum is subject to quotas.
REFUGEE
An immigrant who files for asylum from outside the U.S. is a
refugee.
Usually, a refugee applies for asylum outside the U.S. in a refugee
camp.
A refugee can apply for asylum due to a well-founded fear of
persecution in his/her home country. The cause of this fear must
be based on political opinion, religious belief, nationality, race, or
membership in a particular social group.
Usually, the process for refugees is quicker than asylees. This is
because they do not have to prove their status as a refugee since
it is already determined while outside the U.S.
Convention Against Torture and Other Crimes
It is the policy of the United States, in accordance with the United
Nations Convention Against Torture, not to deport any person to a
country in which there are substantial grounds for believing the
person would be in danger of being subjected to torture. The
standard is whether a person would be tortured “more likely than
not” if they were deported to their home country.
Withholding of Removal
Withholding of Removal is a different standard than asylum. It is
based on a probability of harm to the immigrant if he/she is
returned to their specific home country. It allows immigrant to
remain in the U.S but without status and is not eligible for a green
card. Preparing this is more difficult than asylum and the benefits
are less from those given to asylees. However, this relief is
mandated by law if applicant can prove his/her case. This relief is
not subject to quotas.
DEFINITION OF REFUGEE
The Immigration and Nationality Act defines "refugee" in Sec. 101
(a)(42) as:
(A) any person who is outside 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 return to, and 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, or
Social group membership includes such areas as gender and
sexual preference persecution.
(B) in such circumstances as the President after appropriate
consultation (as defined in section 207(e) of this Act) may specify,
any person who is within the country of such person's nationality
or, in the case of a person having no nationality, within the country
in which such person is habitually residing, and who is persecuted
or who has a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
The term "refugee" does not include any person who ordered,
incited, assisted, or otherwise participated in the persecution of
any person on account of race, religion, nationality, membership in
a particular social group, or political opinion.
For purposes of determinations under this Act, a person who has
been forced to abort a pregnancy or to undergo involuntary
sterilization, or who has been persecuted for failure or refusal to
undergo such a procedure or for other resistance to a coercive
population control program, shall be deemed to have been
persecuted on account of political opinion, and a person who has
a well founded fear that he or she will be forced to undergo such a
procedure or subject to persecution for such failure, refusal, or
resistance shall be deemed to have a well founded fear of
persecution on account of political opinion.
REFUGEES VS. ASYLEES
The main difference between refugees and asylees is that
refugees establish this well-founded fear while outside the U.S.,
typically in a refugee camp, and are then relocated to the U.S. to
reside here.
Asylees are individuals who have come to the U.S. with visas or as
illegal entrants and then file for asylum. Their application must
establish their well-founded fear of persecution on account of one
of the five grounds.
The asylum and refugee process is not an easy one; simply
because a country is war torn or in extreme turmoil does not mean
its citizens are eligible to reside in the U.S. as refugees or asylees.
Proving a well-founded fear of persecution is a very difficult
process that is best done with legal counsel. Individuals with
strong claims can sometimes qualify for assistance from a human
rights organization that helps prepare applications on a pro-bono
basis.
A person fearing persecution in their home country can
seek asylum.
To be considered for Asylum, a person must:
- 1. Have been in the United States for one year or less
2. Be able to show that they have been persecuted in the
past or have a well-founded fear of
persecution in their home country because of:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
If the judge grants asylum, the person is no longer “removable”
and can apply for a green card one year later.
FREQUENT QUESTIONS
Q. Is there a deadline to apply for asylum?
A. To apply for asylum, an immigrant needs to apply within 1 year
of his/her arrival to the U.S. If 1 year has gone by since arriving to
the U.S., an immigrant cannot apply for asylum unless he/she can
show some extraordinary circumstance, or change in
circumstances in their home country.
Q. When do I get a green card if granted asylum?
A. If granted asylum, an immigrant may apply for a green card
after 1 year.
Q. Can I apply for asylum even if I came to the U.S. illegally?
A. Yes. Irrespective of immigrant’s status, an immigrant can still
apply for asylum.
Q. Can I apply for asylum even if I have a criminal record?
A. If an immigrant has committed a serious crime, it could bar
him/her from obtaining an asylum status.
Q. Can I apply for asylum even if I have a criminal
conviction outside the U.S.?
A. If an immigrant has committed a serious crime, even if outside
the U.S., it could bar him/her from obtaining an asylum status.
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