Prepared by: Florence Immigrant & Refugee Rights Project

The Florence Project provides free legal services to indigent non-citizens detained in Arizona by Immigration & Customs Enforcement and facing removal from the United States.  Due to our limited resources as a nonprofit organization we only serve individuals who are presently detained in Arizona and do not take referrals for non-detained cases or provide legal advice in these cases.  Self help documents on applying for common forms of immigration relief from detention are available to download from our website: www.firrp.org.

This document is intended to provide you with legal information about Asylum Law. If you need legal advice, please go to the Where to Find an Attorney article.

What is Asylum?

Asylum is the vehicle through which the United States provides protection to non U.S. Citizens who are physically present in this country and who are in danger of persecution if forced to return to the countries from which they fled. The basic idea of asylum is protection, so a grant of asylum allows the persecuted individual to remain here in safety regardless of whether she or he has any other legal means for staying in the country.

Congress first codified this form of protection in 1980 through the Refugee Act.  The Refugee Act was based on the 1967 Protocol Relating to the Status of Refugees.  Under United States law, the U.S. Attorney General enforces all U.S. immigration law, including asylum.  The Department of Homeland Security (DHS) is the agency charged with implementing and interpreting asylum law.

Asylum can be brought either as an affirmative application by someone who has not been apprehended by DHS, OR as a defense in removal (deportation) proceedings.

What are the sources of law on asylum?

To be granted asylum, a person must meet the U.S. definition of “refugee” (based on 1951 Convention/1967 Protocol). Immigration and Nationality Act (INA) § 101 (a)(42)(A), 8 USC § 1101(a)(42)(A):

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.

Asylum is an optional form of relief under U.S. law. INA § 208(a), 8 USC §1158(a).  Individuals have the right to seek asylum pursuant to Article 14(1) of the Universal Declaration, but have no right to receive asylum.

Other sources of asylum law are:

• Federal regulations: Title 8 of the Code of Federal Regulations §§ 208 et seq.
• Case Law, or court decisions, from the Board of Immigration Appeals (BIA) and various Circuit Courts (Ninth Circuit in Arizona). 
• Decisions of Immigration Judges in the Executive Office of Immigration Review.
• Secondary sources: United Nations High Commissioner for Refugees Handbook and INS Basic Law Manual

What do you have to prove to win asylum under the law?

A person must show he or she is

a)       outside of country of origin

b)       has a well-founded fear of future persecution OR has suffered past persecution

c)       which is based on one of 5 protected grounds:

o        Race

o        Religion

o        Nationality

o        Membership in a particular social group

o        Political opinion

What do those terms mean?

• Outside of Country of Origin - The person is present in the U.S. and is a citizen of another country.
• Well-founded Fear of Persecution or Past Persecution - The person must actually fear returning to his or her country, and there must be an objective basis for that fear based on specific facts shown through evidence or credible testimony.
• Persecution -  the person shows that harm or suffering will occur on him or her as punishment of a belief or characteristic.
  • Threats to life and freedom (genocide, slavery, torture, prolonged detention) constitute persecution.
  • Rape, beatings, non?life?threatening violence and physical abuse constitute persecution.
  • Economic disadvantage is not enough alone, but may be if 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.
  • Cumulative incidents may constitute persecution even if each incident alone would not.
  • Past persecution can establish eligibility for asylum, even without showing a likelihood of future persecution. Even if there is little likelihood of future persecution, asylum may still be granted for humanitarian reasons (based on extreme nature of past persecution).

The persecutor must be a government actor or a non?governmental entity that the government is unable or unwilling to control.  For example, the persecutor could be groups such as guerrilla forces, death squads, a powerful clan, or society at large in cases of severe racial, gender or sexual orientation discrimination.

• Five protected grounds
  • Race
  • Religion
  • Nationality
  • Political Opinion - opinion about something government/persecutor doing or not doing. The persecutor must view the opinion as criticism it will not tolerate and seeks to overcome
  • Social Group - membership in a group of persons all of whom share a common immutable characteristic such as sex, kinship, or, in some cases, former military leadership or land ownership.

Are there bars for some people for receiving asylum?

Yes.  Federal law bars people from receiving asylum under the following circumstances:

• If the person failed to apply for asylum within one year of arriving in the United States.
• The person “firmly resettled” in a third country after fleeing their native country and before coming to the U.S. 
• The person has persecuted others
• The person has been convicted of a crime considered to be an “aggravated felony” or “particularly serious crime” under immigration law.

If I win asylum, what are the benefits?

If a person is granted asylum he or she becomes an “asylee” under immigration law.  An asylee cannot be deported from the U.S. unless conditions change in the native country such that the asylee no longer has a well-founded fear of persecution.  An asylee can apply for and receive employment authorization and have all the benefits of being a refugee.  He or she can also adjust status to lawful permanent residency status (get a green card) one year after being granted asylum. He or she may also be able to obtain asylee status for a spouse and children under 21. 

If I don’t qualify for asylum, are there other similar forms of legal relief available to me?

There are two other forms of legal relief similar to asylum.  In cases when a person is ineligible or barred from applying for asylum, relief may be available under “withholding of removal” or “Article 3 of the Convention Against Torture.”

What is Withholding of Removal?

U.S. law has a remedy of withholding of removal (INA § 241(b)(3)), 8 U.S.C. 1231, which means that the Attorney General may not remove an alien (there are some exceptions) if the Attorney General decides that the alien's life or freedom would be threatened in his or her native country because of race, religion, nationality, membership in a particular social group, or political opinion.

Withholding is a mandatory remedy which requires a higher standard of proof than asylum.  To obtain withholding, the applicant must prove a "clear probability" (or greater than 50% chance) of persecution.

A person usually asks for withholding of removal if they have an aggravated felony and are ineligible for asylum, or if there are negative factors such as criminal history that does not contain aggravated felony but which makes discretionary grant of asylum questionable.

The benefits after being granted withholding of removal are less than asylum.  A grant of withholding prohibits DHS from deporting the individual to the specific country of persecution, but the individual may be deported to another country where they would not face such persecution.  The person can obtain work authorization but cannot adjust status to legal permanent residency.

What is Article III, Convention Against Torture?

In November 1994, the United States became a full party to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention). Article 3 of the Torture Convention prohibits the United States from returning a person to a country where there are substantial grounds for believing that the person may be in danger of torture.

Relief under the Torture Convention differs from asylum and withholding of removal in several ways.

1)       There are no exceptions to this form of relief if there is evidence that the person will more likely than not be subjected to torture.

2)       The torture does not have to be on account of "race, religion, nationality, membership in a particular social group or political opinion. 

3)       The torture must be carried out by a government or an individual who is acting on behalf or with the acquiescence of the government (this has not discouraged practitioners from bringing cases where the persecutors are non-governmental actors).

4)       Article 3 focuses on the likelihood that the person will be tortured in the future.