Asylum is a process in which foreign nationals in the United States seek refuge because they are being persecuted on the basis of race, religion, nationality, political belief, or membership of a particular group.  By definition, an asylee (an Asylum applicant) must meet the qualifications of a refugee.  An asylee is “any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country 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…” INA Section 101, 8 U.S.C. 1101.  Essentially, the foreign national must prove the following:

• The foreign national is a member of a particular group that could be classified as a race, religion, nationality, political belief, or membership of a particular group;

• The foreign national must be outside of the native country.  If the foreign national is in the United States, he/she is called an asylee.  If the foreign national is outside of his or her home country, but are not inside the United States, then he/she is called a refugee.

• Although the law states that the foreign national must be unwilling OR unable to return to his or her home country, courts have construed that the foreign national must be unwilling AND unable to return to the home country.  If it is determined that the foreign national can be removed to a different part of the country, then such person is not qualified as a refugee or an asylee.

• The government of the home country must not have the ability, or that they are unwilling, to protect the applicant from persecution.  More often than not, it would be important if the foreign national can demonstrate that they are being persecuted by the same government or government sympathizers.

• Last but not least, the foreign national must prove that he/she was persecuted in the past and/or has well founded fear of future persecution.  For example, if the foreign national has not been personally persecuted, but can show that the applicant’s immediate family members were persecuted or that he or she is on a black-list, then the foreign national may have credible fear of future persecution.

 

Contact the Immigration Lawyers at Smith & Garg today for more on asylums and the process!