For many decades now, the protections of asylum have allowed immigrants to find shelter in the United States away from their native countries where they would likely be harmed or killed.  Asylum is a wonderful option because if you are an immigrant who has been granted asylum, you may work in the United States legally soon after your asylum application is granted, and you can obtain permanent residence (a “green card”) one year after your application is granted. 

        There are many factors, however, that immigrants may overlook when filing an asylum application.  Here are a few questions that you should ask yourself before applying:

1. 1.Do You Have a Valid Asylum Claim?
   

The first question you should ask yourself before applying for asylum is:  Do I have a valid claim for asylum?  The question requires knowledge of the requirements for a viable asylum claim.  Some of the most important issues are outlined below:

1. 1. a.Have You Suffered Past Persecution in Your Native Country, or Do You Fear Future Persecution in Your Native Country?
      

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To be eligible for asylum, you must first establish that you are a “refugee.”  The term “refugee” takes on a specific meaning within immigration law, signifying that you have suffered past persecution or fear future persecution in your native country because of one of five specific reasons. 

The definition of “persecution” is not a settled one, but it usually must rise to the level of some sort of physical harm.  In other words, not wanting to return to your country because you are being verbally harassed would not be enough.  Along those same lines, not wanting to return to your country because you feel you could have a better life in the United States would also not rise to the level of persecution.

        You are likely have a valid claim to asylum if you or someone close to you has experienced physical harm or has even been killed.  Unfortunately, this means that the worse your situation was in your country, the better your chances are of being granted asylum. 

        Even if you have not experienced physical harm or threats of harm in the past, your fear of experiencing physical harm or death if you were to return to your country may be enough to define you as a “refugee.”  Therefore, although you experienced no “past persecution”, your fear of “future persecution” would demonstrate that you merit asylum.  For example, if you received threats against your life while living in your home country, these threats would demonstrate that you have reason to fear returning. 

1. 2. b.Can You Find Documentation Showing That Your Native Country Persecutes People Like You?
      

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        Your asylum claim will be much stronger if you can submit documents showing your country persecutes people like you (whether it is because you are in a certain political group, religion, social group, or other protected status).  Furthermore, even if nothing bad happened to you or someone you know back in your home country, other documentation may prove that you do have reason to fear persecution.  Government reports detailing your native government’s actions or your government’s refusal to stop non-governmental actors from perpetrating those actions can be very persuasive evidence for your asylum claim.  Similarly, articles from non-profit organizations, such as human rights organizations, can be very valuable.  Lastly, news articles can also demonstrate that conditions in your country are so bad as to give you a credible fear of future harm.  

1. 3. c.Do You Fear Persecution Because of Your Race, Religion, Nationality, or Membership in a Particular Social Group (Including Being Gay, Lesbian, Transgender or Bisexual)?
      

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       Asylum is not available simply because you have experienced physical mistreatment or fear future mistreatment, however.  To have a valid asylum claim, you must have experienced past persecution or fear future persecution for a specific reason.  A central reason for your persecution must be due to one of the following five reasons: race, religion, nationality, membership in a particular social group (including being gay, lesbian, transgender or bisexual), or political opinion.  Therefore, for example, if you experienced physical harm at the hands of one of your country’s police officers simply because the police officer didn’t like you, you would not be eligible for asylum.  But if the police officer harmed you, or failed to protect you from harm, because you, for instance, believe in a certain religion or because of your sexual orientation (or due to the other reasons listed above), you would have a much stronger asylum claim. 

1. 4. d.Can You Present Evidence to Support Your Asylum Claim?
      

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If you believe you have a valid asylum claim based on the factors above, you should next ask yourself whether you would be able to support your claim with any evidence.  While an asylum claim may still be successful even if you lack evidence to support the facts you are alleging, your chances of success are much greater if you can provide corroboration for your story.  For example, if you are claiming asylum based on the fact that the police came to your home and beat you because of a particular political opinion you held, it would be helpful to obtain any evidence you can of that specific incident.  You could obtain affidavits from others who were present at the time, medical reports of any injuries you received, along with your affidavit describing the incident in detail.  If you lacked any evidence of such an incident, you could still submit evidence through your own affidavit and during your asylum interview or hearing, but your credibility would be extremely important. 

2. 2.Do You Have Any Bars to Obtaining Asylum?
   

        Now that you have asked yourself whether you have experienced past persecution or fear future persecution due to your race, religion, nationality, membership in a particular social group or political opinion, next ask yourself if you have any bars to obtaining asylum.  Generally, if you have been convicted of a felony in the United States, have committed a serious crime outside the United States, are found to be a security risk to the United States, have participated in the persecution of any person, or have lived in another country after leaving your country of origin but before seeking asylum in the United States, your claim will be denied.  An important note is that unlawful entry into the United States or unlawful status in the United States, which is a typical bar to receiving a green card, is not a bar to asylum!  Asylum is a forgiving process, and your unauthorized presence in this country will not override your likely physical harm or death were you to be deported to your home country. 

3. 3.What Will Happen to You if Your Asylum Application Is Denied? 
   

        Applying for asylum is not without its risks.  A denial of your asylum claim will most likely cause you to be deported to your home country following the proceedings (unless you can find another means of staying in the United States).  It also means that you will most likely not be admitted back into the United States on a temporary visa, and this will potentially limit your ways of returning to the United States in the future. 

        In this sense, asylum is more of an “all or nothing” approach to remaining in the United States.  If you are granted asylum, you are well on your way to permanent residence and eventual citizenship.  If you are denied asylum, however, you will be deported.  And, since you have just shown immigrant intent by filing for asylum, you will most likely not be able to return on certain types of temporary visas, such as tourist visas or student visas.  Keep this point in mind if you have plans to apply for or extend temporary visas in the future. 

        If you have a strong case for asylum based on the factors outlined above, it will likely be in your best interest to file for asylum regardless of these risks.  But if you have a weaker asylum case, be sure to understand the risks before you file your asylum application. 

4. 4.When Should You Apply for Asylum?
   

        If you believe you have a valid asylum claim, and also believe you have no bars to obtaining asylum, you must next ask yourself when you should apply for asylum.  Generally, you must apply for asylum within a year of your last entry to the United States.  Many people enter the United States various times, but the asylum deadline only begins running from the date of your last entry.  For example, if you entered the United States for the first time on March 11, 2009, then returned home, only to come back to the United States on December 28, 2011, you would have until December 28, 2012 to file for asylum.  There are also various exceptions to the one year filing deadline relating to changed circumstances in your life, such as medical or psychiatric conditions.  One important exception is that you do not have to file for asylum within one year of your last entry into the United States if you have been here in lawful status.  If you came to the United States on a student (F-1) visa, for example, you would not have to file for asylum until a “reasonable time” after the expiration of your visa.  A “reasonable time” has not been formally defined, but it would be prudent to file shortly before the expiration of your status, or, at the very latest, within a few months after your visa has expired.

        If you are currently in the country in valid status, the timing of your asylum application is also important for another reason.  If you might wish to extend your current temporary visa or apply for a different temporary visa at some point, you may not be able to do so if you file for asylum and lose.  Although asylum is a wonderful way to obtain permanent resident status in the United States, it is also risky because you will most likely not be allowed back in the United States if your claim is denied and you are deported (unless you have another path to permanent residence, such as through a spouse who is a United States citizen).  The reason for this is because of “immigrant intent.”  If you come to the United States on a temporary visa, meaning a visa that is not a green card for permanent residence, the government will look to see if you wish to remain in the United States indefinitely.  If they suspect that you do, your visa application will most likely be denied. 

5. 5.Conclusion
   

The questions above are some of the most important to ask yourself before applying for asylum, but immigration law in the United States is very complex, and there likely will be other issues specific to your individual case.  To increase your chances of being granted asylum, consult an immigration attorney with asylum experience to assist you with your case.  The process can be confusing, and a professional can guide you in what documents to submit and how best to handle the interview.  If you have any questions, or for a free initial consultation about your asylum claim, please contact us. 

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Kate Lenahan has successfully represented individuals from many different countries in pursuing their asylum claims, beginning when she was a Legal Fellow at Immigration Equality, a non-profit organization that is dedicated to providing legal services to LGBT immigrants.   

Copyright 2012 Brophy & Lenahan P.C. 

All rights reserved.

The article above is intended to provide general information.  It is not legal advice and should not be used as legal advice.  For legal advice on your particular issues, you should consult with an immigration attorney who can familiarize himself or herself with your specific issues.