Asylum is one of the most complicated areas of immigration law in our legal system. Both the legal analysis and the process that are required can seem arbitrary and outside the bounds of common sense. Worse, the process often requires victims of severe abuse relive their experiences several times order as judges, attorneys, and bureaucrats coldly evaluate whether the application is approval or not.
Still, the reality of the situation is that for thousands of foreign nationals residing in the United States, returning to their home country could result in death. Asylum is supposed to be the process that provides refuge and protection for them, but it is not easy. Asylum is a highly discretionary benefit. In other words, the government can choose to grant or deny asylum. The requirements for proving asylum eligibility are strict.
In the United States, asylum exists in two forms, known as “affirmative” and “defensive” asylum. Affirmative asylum refers to those applicants who apply for asylum outside of deportation proceedings as a means to remain in the United States. Defensive asylum refers to applicants who apply for asylum in order to avoid deportation from the United States.
Regardless of the form of asylum an applicant is pursuing, the burden rests on his or her shoulders to show that either persecution was suffered in the past or that there is a well-founded fear that persecution will occur in the future if not allowed to remain in the United States. Not everything that meets the common sense definition of persecution qualifies as persecution under the law.
To meet the definition of persecution, the feared harm must be on account of one of five specific bases:
- Membership in a particular social group
- Political opinion
What constitutes race, religion, nationality, membership in a particular social group, or political opinion is not clear and can be aggressively disputed by the government.
This is not easy law and requires an experienced, steady hand to help guide through the complicated legal analysis and pitfalls designed to limit the number of successful applications each year. It also requires significant evidence in support of the application, something not always easy to obtain when someone is fleeing their country of origin out of fear for their lives.
When asylum works, the results can be a safe, permanent home in the United States, with opportunities to apply for lawful permanent resident status and, down the road, citizenship. Stability, family unity, and the opportunity for a new life can follow.
Asylum is not the only humanitarian benefit available in U.S. immigration law. Benefits under the Violence Against Women Act, U visas, T visas, S visas, Deferred Action, and DACA may also be on the table depending on the circumstances.