A foreigner that is physically present in the United States (and any of its territories), or in an entry port to the country may be able to apply and receive political asylum if the Attorney General determines that this particular foreigner meets the requirements to become a “refugee” as defined by the law.
A refugee is a person who is not in his country of origin and who for political reasons, or for a well-founded fear of persecution due to his or her race, convictions, associations or affiliations, is unable to return to his or her country.
In order to achieve success in a political asylum case, the foreigner has to be able to prove:
- That he or she has a well-founded fear of persecution or has been persecuted in the past.
- That the persecution was based on his or her particular race, religion, associations or political affiliation.
The foreigner must be able to demonstrate with specific facts that persecution occurred in the past, and/or have a well-founded reason to fear future persecution. Other factors that may be considered as demonstrations of persecution are: murder, torture, arrests, forced servitude and accumulated mistreatment. Also, persecution could be based on economic factors, but this type of persecution has to be extremely severe and be accompanied by other forms such as the ones mentioned above.
In order to prove that there is a well-founded fear of persecution, the foreigner must demonstrate:
- That his or her own beliefs or particular opinions have been persecuted by someone (organization, political party, government) who will punish them because of them.
- That the persecutor was and is aware of the foreigners particular beliefs and opinions.
- That the persecutor is capable of punishing him or her.
- That the persecutor's tendency will be to punish him or her.
Also, the government of the foreigner's country has to either inflict the persecution or be unable to offer protection against the actual persecutor. Similarly, a well-founded fear of persecution includes subjective and objective elements, and the persecution has to be based on at least one of the points mentioned above.
Even if the foreigner is able to establish that his or her fear is well founded, the asylum may be still be denied for other reasons such as a statutory limit or a discretionary measure.
There are two ways to apply for political asylum. The first one is known as an affirmative application. Through this method, the foreigner files his or her application with the USCIS Service Center directly, before receiving a deportation order. The applicant will be interviewed after the application is reviewed, and he/she has the right to have a qualified immigration lawyer with him/her.
In addition to the affirmative application, the foreigner can also apply after a deportation order has been already issued. The applicant will be given a court date and an immigration judge will determine if the application was filed in good faith.
If the immigration judge accepts the application, the applicant can file an adjustment of status a year later. If the application is denied, the foreigner can appeal the decision with the USCIS Appeals Board.
A person that is trying to file for political asylum must do it within a year of his or her arrival to the United States. Normally, a person that had previously filed a petition and been denied, or a person that has been accused of a felony cannot apply for political asylum.
The United States Government allows the applicant to hire a qualified immigration lawyer to represent him/her in court. The applicant will be responsible to pay the attorney's fees.