Asylum is a status the U.S. grants to aliens who, after coming here, ask the country for refuge from the persecution they have suffered or fear of persecution in the country they left. Asylum is similar to refugee status, but a person may apply for it only within the U.S.
To gain asylum status, one must be a refugee. Under U.S. law, a refugee is an alien who is both:
An alien may file an application for asylum in two ways: affirmatively with the Department of Homeland Security or defensively with an immigration judge after the Department of Homeland Security has initiated removal (i.e., deportation) proceedings. In both affirmative and defensive applications, asylum claimants are entitled to have an attorney represent them, either at their own expense or through a nonprofit agency. Both affirmative and defensive claims are made on Form I-589.
Asylum claims filed affirmatively are decided by an asylum officer. After an interview (through the applicant’s own interpreter, if needed), the officer determines if the applicant is telling the truth and is in fact a refugee. The officer then either grants the application or, if the applicant is not in valid immigration status, initiates proceedings to have the applicant removed.
This risk of denial and deportation means that affirmative asylum applicants need to be aware of these frequently cited reasons for denial:
In addition, three grounds for denial are often the result of avoidable mistakes:
Whether or not an affirmative application has been filed, an alien in removal proceedings before an immigration judge has the right to pursue an asylum claim. The criteria for granting that claim are the same, but the process is different:
To those aliens who do not qualify for asylum (e.g., did not meet the filing deadline), the judge may grant protection from removal that is similar to asylum but not as beneficial. Thus, the alien might qualify for withholding of removal. Withholding forbids the Department of Homeland Security from sending the alien to a country where, according to the immigration judge, he or she is more likely than not to be persecuted. Withholding recipients are entitled to renewable work authorization but cannot leave the U.S. or attain residency unless an employer or qualifying family member petitions for them and both the department and the judge agree to reopen the removal case.
Similarly, the Convention Against Torture protects those who convince the judge that they would face torture if returned to their country of origin. There are two forms of convention relief: withholding under the convention resembles statutory withholding, described above; deferral of removal is mere protection from removal. Granted most often to aliens convicted of certain crimes, withholding under the convention does not necessarily entitle an applicant to be released from detention.
By comparison with withholding and convention benefits, asylum is generous:
Asylum may be terminated if the applicant returns to the country from which he or she sought refuge or if the applicant is convicted of criminal activity.
Last update: Sept. 25, 2008