REFUGEE & ASYLUM

Refugee & Asylum

"Refugee" is defined as a person who is unable or unwilling to return to his/her native country because of a "well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion”.

The United States holds a firm belief in human rights and in ending or preventing the persecution of individuals. Therefore, asylum is a protection granted by federal law to qualified applicants who are unable or unwilling to return to their home country because of persecution or a fear of persecution.

Asylum and Refugee status differ only in that the application for asylum status is made from within the United States and refugee status is applied for from outside the U.S. However, all applicants must meet the definition of a refugee.

An alien, who has been granted asylum, will be allowed to live and work in the United States. He/she may apply for permanent resident status one year after being granted asylum. A spouse and any unmarried children under the age of 21 may be included in asylum application if they are in the United States.

If you do not qualify for asylum, but fear being tortured upon returning to your homeland, you can apply for consideration under the Torture Convention.

‘Affirmative’ Asylum Applications

An applicant who is in the United States and is not in immigration proceedings may voluntarily apply to the INS (Form I-590) for asylum. These applications are known as ‘affirmative’ asylum applications and come up before the Asylum Officer Corps (AOC). Such applicants are not placed in detention while the application is being considered.

‘Defensive’ Asylum Applications

This refers to aliens who are placed in removal proceedings and then seek asylum. Although Form I-589 is used for both asylum and withholding of removal, removal proceedings come up before an immigration judge. The Executive Office for Immigration Review (EOIR) has exclusive jurisdiction over cases of aliens who are placed in removal proceedings and then apply for asylum. These are known as ‘defensive’ applications. Aliens who seek asylum as a defense against removal may be detained for being in the U.S. illegally until an immigration judge rules on their asylum claim. This detention, however, is not due to the asylum claim, but to their illegal status.

Aliens who arrive at a U.S. port of entry without travel documents or who engage in misrepresentation are detained and placed in expedited removal. Those who express a fear of persecution from the home country receive a ’credible fear’ interview with an INS asylum officer. If the officer feels the case to be genuine, the alien may apply for asylum but will be detained, as he/she must remain in removal proceedings until an immigration judge decides their case.

Parole

INS district directors have the authority to release an alien, who is in removal proceedings, from detention. This may be done if the director feels that the release would serve some humanitarian need or public benefit and the alien can provide evidence of a credible asylum claim. However, criminal aliens are governed by more restrictive criteria.

Overseas Refugees

The United States has a refugee program by which a refugee applicant may be interviewed in a third country after he/she has fled his/her own country for fear of persecution. Such a person should contact the nearest office of the United Nations High Commissioner for Refugees, who will decide whether the individual requires protection or not. The U.S. President designates certain countries and the number of refugees that will be accepted in the coming fiscal year.

This application may be filed on a Form I-590 but the alien must be eligible for a refugee interview and this depends on their nationality and whether they come under the processing priorities used for the refugee program.

INS InfoLinks on Refugee and Asylum

v INS Homepage for Asylum

v How To Apply For Asylum

v Derivative Asylum for Spouse and Children

v Resettlement in the U.S.

v Derivative Refugee Status for Spouse and Children

v Guidelines for Children’s Asylum

v U.S. Asylum and Refugee Policy

The information in this article is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice and does not establish an attorney-client relationship between The Law Offices of Cyrus S Nallaseth and the viewer.