People fleeing their countries because they have suffered harm or fear future harm may have the right to seek asylum in the United States. The 1951 United Nations Convention relating to the Status of Refugees and the 1967 United Nations Protocol relating to the Status of Refugees guarantee the right to seek asylum for those individuals fleeing persecution. The Convention Against Torture also offers protection to people facing torture if returned to their countries. By signing the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the United States has committed not to return anyone to a country where she could be tortured. U.S. statute, specifically the Immigration & Nationality Act (INA), sets forth procedures for refugees to seek protection in the United States. The Department of Homeland Security (DHS) and the Department of Justice’s Executive Office for Immigration Review (EOIR) share responsibility for making decisions on asylum applications.
To qualify for asylum, the applicant must be physically present in the United States. If not in Immigration Court, she must file an affirmative I-589 Application for Asylum and Withholding of Removal with U.S.C.I.S., a branch of the Department of Homeland Security. If already in removal proceedings (Immigration Court), the applicant will submit a defensive I-589 application with the Executive Office of Immigration Review. The Attorney General may grant asylum to an applicant who can establish past persecution or a well-founded fear of future persecution in her home country on account of race, religion, nationality, membership in a particular social group, or political opinion. Asylum is however discretionary and may be denied if certain negative factors (equities) present themselves. Certain past actions, including commission of certain serious crimes, persecution of others, and material support to terrorist organizations, may render an individual ineligible for asylum.
An approved asylum application carries significant benefits. In most circumstances, an asylee can remain indefinitely in the United States. However, asylee status may be terminated if it is determined that the status was obtained fraudulently or if the asylee no longer fears return to her country of origin. An asylee is authorized to work and may apply for a green card, one year after the grant of asylum. An asylee’s spouse and unmarried children under 21 can obtain asylee status or follow to join the asylee in the United States. Finally, an asylee has the right to travel and return to the United States in asylum status, although travel to her home country may call into question her fear of return.