“Asylum” is a type of protection that enables individuals who are in the U.S. to remain here under certain conditions and circumstances. U.S. law states that any alien who arrives in or is present in the U.S. may apply for asylum. “Refugee” Status In order to obtain asylum, the alien must be a “refugee” as defined by federal law and must not be barred from obtaining asylum under applicable laws and regulations. Federal law defines refugees as persons outside their home country or country of residence, who are unable or unwilling to return 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. Circumstances Under Which Asylum May be Prohibited There may be no authority for granting asylum under the following circumstances:
The U.S. Attorney General determines that the alien can be sent to a third country, where the alien’s life or freedom will not be threatened and where asylum or equivalent protection may be obtained, unless it is in the public interest to grant asylum in the U.S.
The alien fails to document “by clear and convincing evidence” that the application for asylum was filed within one year from the date of arrival in the U.S., unless certain exceptions to this deadline apply.
The alien has previously applied for and been denied asylum, unless the alien can demonstrate changed circumstances that materially affect asylum eligibility.
A grant of asylum is “discretionary.” Thus, even if a showing of refugee status is made, the U.S. Attorney General does not have to grant asylum. The law further provides that courts generally do not have jurisdiction to review the determination of the U.S. Attorney General on asylum. Exceptions to the Grant of Asylum The Attorney General may not grant asylum, even where the alien is otherwise qualified, if the alien:
Ordered, incited, assisted, or otherwise participated in persecution of any persons on account of race, religion, nationality, membership in a particular social group or political opinion;
Has been convicted of a particularly serious crime (such as certain aggravated felonies) and constitutes a danger to the community;
Committed a serious, nonpolitical crime outside the U.S. prior to arrival;
May be a danger to the security of the U.S.
Has been involved with terrorist organizations or activity; or
Was firmly settled in another country prior to arriving in the U.S., other than the country where there was persecution or a credible fear of persecution.
Rights and Limitations of Asylum Status A grant of asylum in the U.S. is usually for an indefinite period; however, asylum status does not give the asylee the right to permanently remain in the U.S. Changed circumstances, such as commission of an aggravated felony by the asylee or changed circumstances in the home country, can result in termination of the status. Asylum status gives the asylee certain benefits, including:
The authorization to work in the U.S. while enjoying asylum status.
Entitlement to “derivative” asylum status for a spouse and unmarried children 21 years of age at the time the alien applied for asylum.
Eligibility to apply for permanent resident status after one year.