Who Is Eligible for Asylum or Refugee Protection in the U.S.?

If you are from a country where you have undergone persecution, or you have a well-founded fear of being persecuted if you return to that country in the future, you may decide to seek either refugee protection from the U.S. (if you are currently overseas) or asylum (if you are currently in the United States).

Updated by , J.D. · University of Washington School of Law

If you are from a country where you have undergone persecution, or you have a well-founded fear of being persecuted if you return to that country in the future, you might decide to seek either refugee protection from the United States (if you are currently overseas) or asylum (if you are currently in the United States).

However, the criteria for these protections are stricter than you might expect. You will need to become familiar with the legal grounds for asylum and refugee status, and potentially prepare extensive materials showing that you meet these grounds.

Basic Grounds for Asylum or Refugee Status in the U.S.

Being afraid to return to your home country is not enough by itself. To establish eligibility for asylum or refugee status under U.S. law (8 U.S.C. § 1158), you must prove that you meet the definition of a refugee (under 8 U.S.C. § 1101).

In brief, this means showing that you are either the victim of past persecution or you have a well-founded fear of future persecution. In the case of past persecution, you must prove that you were persecuted in your home country or last country of residence.

The persecution must have been based on at least one of five grounds, either your:

  • race
  • religion
  • nationality
  • political opinion, or
  • membership in a particular social group.

Proving this connection between the persecution and one of these five grounds is one of the most difficult parts of successfully applying for asylee or refugee status—especially because you must show that one of the five grounds was or will be a "central reason" for your persecution.

Does "gender" fit into any of these five grounds? This is an area of ongoing legal argument. People have succeeded in gaining asylum based on having been subject to cultural practices such as female genital cutting, forced marriage, domestic violence, and more, particularly in cases where the police and government compounded the problem by failing to protect the women or prosecute the perpetrators. But these are hard-one cases, and the pendulum sometimes swings backward.

What Is Persecution?

U.S. immigration law does not specifically list types of persecution, except in one section of the refugee definition saying that it includes people who have undergone or fear a "coercive population control program" (such as forced abortion or sterilization—this was directed primarily at mainland China, and added in 1996). Few of the many people who apply for asylum fit into that category.

Persecution is defined more generally (by U.S. courts and administrative practice) as the infliction of suffering or harm, or a serious threat to life or freedom. Harassment alone isn't enough, but things like death threats, torture, imprisonment, constant surveillance, pressure to join a group engaging in illegal activity, interference with your privacy, family, home, or correspondence, or discrimination in matters like housing, education, or passport issuance have all been found to qualify.

The threat against you needs to be a nationwide—you will not be thought to have a well-founded fear of persecution if you could avoid the problem simply by moving to another part of the country.

Also, the fact that you were impoverished or suffering economically is not, by itself, considered a reason for granting refugee or asylee status. Nor is it enough if someone has a grudge against you, or has committed crimes against you for random or personal reasons.

If you have not actually suffered persecution in the past, you can still qualify for political asylum or refugee status if you have a genuine fear of future persecution in your home country or last country of residence. For example, if you were the secretary of a student dissident group, and undercover agents sent you death threats or killed the treasurer and president of your group, you could probably show a reasonable fear of persecution.

Again, a "central" reason for your persecution must be your race, religion, nationality, membership in a particular social group, or political opinion. You do not have to prove that you are likely to be singled out for persecution from the members of a generally persecuted group. You need only show a pattern or practice, where groups of persons who are similar to you are being persecuted. Then, you must show that you either belong to or would be identified with the persecuted group.

Does the Persecution Need to Have Come From the Government?

No, the persecution does not only need to come from your country's government or other authorities (such as police or security forces). Refugee law also recognizes persecution by groups that the government is unable to control, such as guerrillas, warring tribes or clans, paramilitary group, or organized vigilantes.

Again, however, the persecution must have some political or social basis—a member of a criminal network who comes after you just because you haven't paid him off is not persecuting you according to refugee law.

What Is a "Well-Founded Fear" of Persecution?

In order to demonstrate a well-founded fear of persecution, you will need to show both subjective and objective reasonable fear.

A subjective fear means that you, personally, really do fear returning to your country of origin. An objective fear means that you can demonstrate facts, based on objective sources of evidence or your and other witnesses' persuasive, credible testimony, that any reasonable person would fear persecution in your position.

What If Conditions Have Gotten Better in Your Country Since You Left?

If you suffered severe persecution in the past, you are presumed to face future persecution as well. But the U.S. government could try to argue that your country is now considered safe to return to.

If that happens, you might still be able to successfully apply for asylum in the United States. Something called "humanitarian asylum" allows you to receive asylum if you can demonstrate "compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution" or "there is a reasonable possibility that [you] may suffer other serious harm upon removal to that country." (See 8 C.F.R. § 208.13(b)(iii)(A).)

For example, if everything you owned was destroyed, or you would face severe emotional trauma upon returning, or you would remain a social outcast even if you didn't face persecution, you might qualify for humanitarian asylum.

Getting Help

If you want to apply for asylum in the U.S., your best bet is to consult with an experienced U.S. immigration attorney, and quickly. There is a one-year deadline on applying after you've entered the United States. The attorney can evaluate important issues not discussed here, such as whether you could be barred from asylum owing to a criminal record in the U.S. or abroad.

The attorney can help you to prepare your application for asylum, which involves not only preparing the application form, but drafting a lengthy written statement from you and collecting various documents. The attorney can also represent you at the Asylum Office or in immigration court.

Talk to an Immigration attorney.
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