In this episode of the Learn About Law podcast & videoblog, Kevin O'Flaherty of O'Flaherty Law discusses requirements for applying for Asylum in the U.S. and which factors can help overcome statutory deficiencies. Asylum can be based on a reasonable fear of persecution for one of the following reasons; race, religion, nationality, or member in a particular social group. Some newer asylums that have been recently approved in courts include; LGBT, Syrian civil war, bride kidnapping, and former Soviet Union countries.
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If you have fled another country based on a “well-founded fear of persecution” based on race, religion, nationality, political opinion, or membership in a particular social group, you may be eligible for Asylum in the United States.  If you are granted asylum, after entering the United States either legally or illegally, you will be permitted to remain a resident in the United States.  Both refugees from outside of the country and individuals who have entered the country illegally are eligible for asylum. 

‍There are two pathways that individuals seeking asylum can follow: (1) Affirmative Asylum; and (2) Defensive Asylum.

If you have fled another country based on a “well-founded fear of persecution” based on race, religion, nationality, political opinion, or membership in a particular social group, you may be eligible for Asylum in the United States.  If you are granted asylum, after entering the United States either legally or illegally, you will be permitted to remain a resident in the United States.  Both refugees from outside of the country and individuals who have entered the country illegally are eligible for asylum. 

There are two pathways that individuals seeking asylum can follow: (1) Affirmative Asylum; and (2) Defensive Asylum.

1.  Affirmative Asylum

‍Affirmative Asylum is the process for applying for asylum before the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services after entry into the United States before deportation proceedings have been commenced. 

Affirmative asylum must be filed within one year of your last entry into the U.S. or within 6 months of your status ending (e.g. student visa status), unless you can show extraordinary circumstances for a delay.  Extraordinary circumstances include, but are not limited to:

  • New information that only recently came to your attention; 
  • Changed country conditions; 
  • Recently attacks on family members or other individuals who are similarly situated to yourself; and
  • Post-Traumatic Stress Disorder.

2.  Defensive Asylum

‍Defensive Asylum is filed as a strategy for defending yourself against a pending deportation.  In order to be successful, you must be able to show that deportation to your country of origin will result in fear of persecution because of one of the following conditions: 

  • Race; 
  • Religion; 
  • Nationality; 
  • Political Opinion; or 
  • Social Group. 

‍Legal Permanent Residents (LPR) or Green Card holders are entitled to apply for asylum at any time, not just within one year of entry, as a defense to Removal or Deportation. 

‍Individuals who are apprehended at the border and request asylum, are given the chance to apply for asylum if they pass a Credible Fear Interview, during which an asylum officer will ask a series of questions to determine whether the individual has a credible fear of returning to their country of origin. ​

Posted 
November 16, 2020
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