People who have a well-founded fear of persecution should they be returned to their home country, on account of their political opinion, religion, race (or ethnicity), nationality, or membership in a particular social group (such as their family), may claim asylum. One has only to show a reasonable possibility – which may be as low as a 10 percent possibility – that he or she will be persecuted if returned home. Persecution does not include violence or harm suffered just because one was in the wrong place at the wrong time. For example, if there is a civil war raging in a country, and one just happens to be shot, that is not considered persecution.
Recently, U.S. immigration law has provided for claims for asylum by women and homosexuals. In a highly publicized case, the Board of Immigration Appeals granted asylum to an African woman who had fled from her home country to escape from female genital mutilation, a ritual of her ethnic group, which would have been forced upon her by her family and her husband in an arranged marriage. In 1990, the Board of Immigration Appeals held that a gay man from Cuba had established a well-founded fear of persecution on account of his sexual orientation.
One cannot qualify for asylum if one has persecuted others, or if one has been convicted of an aggravated felony, or a particularly serious crime and is a danger to the community.
One must apply for asylum within one year of having arrived in the United States. If not, one must show that extraordinary circumstances caused the delay or that circumstances in one’s home country have changed, effecting one’s eligibility for asylum.
One may make either an affirmative asylum application, or one may make an application for asylum after having been placed in exclusion, deportation or removal proceedings, as relief from deportation or removal. If one makes an affirmative asylum application, one will first have an interview before a USCIS asylum officer. The asylum officer may either grant asylum, or refer the applicant to immigration court if the applicant is not in legal immigration status. Even if the applicant is not granted asylum by the asylum officer, he or she will have a full opportunity to prove his case before the immigration judge.
The 1996 immigration law created a new procedure for people arriving in the U.S. who lack proper documents. Arriving aliens are subject to expedited removal. Those who express either an intent to apply for asylum or a fear of persecution are referred by the inspecting immigration officer for a “credible fear” interview with a designated immigration officer. If the officer finds that the alien has a credible fear of persecution, he or she is referred for a hearing before the immigration judge.
People granted asylum may reside indefinitely in the United States. One year after being granted asylum, one becomes eligible to apply for permanent residency. Asylees who are applying for permanent residency are not subject to the public charge ground of inadmissibility.