Asylum is a means by which individuals who fear persecution if they return
to their home country may be allowed to remain in the United States and,
ultimately, become lawful permanent residents. Applications for asylum
are either affirmative or defensive. An affirmative application is filed
with USCIS before the alien is in removal proceedings. A defensive asylum
application is one which is filed with the immigration court during removal
proceedings. If you are granted asylum, other family members may be eligible
for asylum status as derivative beneficiaries, even if they did not experience
the persecution. After holding asylum status for one year, the alien is
eligible to apply for a green card.
To qualify for asylum, you must be able to prove that you suffered persecution
or have a fear of future persecution if you are returned to your country
of origin. Additionally, your country's government must have inflicted
the injury upon you, or alternatively, failed to prevent the persecution.
The reason for the persecution must be primarily because of your race,
religion, nationality, political opinion, or membership in a particular
social group. Except under rare circumstances, you must apply for asylum
within one year of arriving in the United States.
The case law for asylum, especially those based on membership in a particular
social group, is constantly evolving. Unfortunately, immigration laws
in the United States do not allow a grant of asylum for many people who
legitimately fear return to their country. Most social groups based on
victimization of generalized crime, or those involving fear of gangs and
gang violence, have been rejected by the courts. Similarly, claims based
on domestic violence experienced in the applicant's home country are
frequently denied due to lack of a recognized social group. Recently,
however, there has been some success with domestic violence asylum applications
based on familial unit. Proper articulation of the social group is essential
for these types of claims to have any chance of success.
A strong asylum application usually requires documentation of your confinement
or injuries, affidavits from witnesses or others aware of your adverse
treatment, medical documentation, Human Rights Reports from your country,
and a well-written legal brief outlining the law as it applies to your case.