In order to be eligible for asylum, an applicant must meet the definition of refugee in the Immigration and Nationality Act (INA).
The INA defines refugee as:
“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 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.”
Who can be granted Asylum?
A person in the United States may be granted asylum if he or she can demonstrate a “well-founded fear of persecution” based on:
- Political opinion
- Membership in a particular social group
Recognizing persecution is extremely fact-dependent and fact-specific. Although asylum adjudicators will determine what constitutes persecution on a case-by-case basis, they have consistently recognized certain types of behavior as persecution. The following five broad categories describe abuse that can rise to the level of persecution:
- serious physical harm
- coercive medical or psychological treatment
- invidious prosecution or disproportionate punishment for a criminal offense
- severe discrimination and economic persecution
- severe criminal extortion or robbery
The fear of persecution must be either by the government of his country or by a group that the government is unable to control. If the person is able to establish “past persecution,” a presumption arises that he has established a well-founded fear of persecution. The burden of proof shifts to the government to demonstrate that circumstances have changed and that the person no longer has a well-founded fear of persecution or that the person could avoid persecution by relocating to another part of his country and that it would be reasonable for him to do so.
Although generally a person must apply for asylum within one year after arriving in the U.S., there are some notable exceptions to this rule. Further, if the government can demonstrate that the person has “firmly resettled” in a third country, then he is ineligible for asylum, withholding of removal and CAT.
If a person is in removal proceedings before an Immigration Judge, he may be eligible to apply for “defensive” asylum if he or she fears persecution. He or she may also be eligible to apply for withholding of removal and for relief under the Convention Against Torture (CAT). However, in order to qualify for withholding of removal, the person must demonstrate that it is more likely than not that he will be persecuted if he is forced to return to his country. This is a higher standard than the “well-founded fear” standard for asylum which can be met if the person has at least a 10% chance of being persecuted.
Also, unlike asylum, obtaining withholding of removal or relief under CAT does not necessarily lead to permanent residence in the U.S.
Under Convention Against Torture (CAT), the six elements of “torture” are as follows:
- An intentional act
- Infliction of severe pain or suffering
- Under the custody or control of the offender
- For a broad array of wrongful purposes
- By or sanctioned by a public official
- Not arising out of lawful sanctions
To learn more about how attorneys at Murad Immigration Law can help you with your asylum-related immigration matters, contact us today at 303-449-5535. We are ready to begin helping you immediately.