Application for Asylum


The United States of America is known worldwide as the land of opportunity. People come here in hopes of making better lives for themselves and their loved ones. That hope includes getting a good job, finding a safe, decent place to live, and sending their children to school so those children can have the kind of lives their parents could only dream of in the country they left behind.

Greencard AttorneysBut while there are many people who come here seeking better economic opportunities and better lives, there are also people who are driven from their native country by fear of torture, persecution, and even death. Those people may have entered the United States legally, with a visa, now expired, or they may have entered illegally and are now essentially hiding here without immigration status, fearful of what may happen if they are discovered and forced to return to their homeland.

If you are in this country without status, either alone or with your loved ones, and you fear being forced to return to your home country, you should take action now to protect yourself and your family by talking with lawyers who understand your situation. The dedicated Lexington immigration lawyers at Carman Fullerton, PLLC are ready to talk with you about the possibility of applying for asylum or withholding of removal if you fear a forced return to your homeland.

What is Asylum, and Who is Eligible?

Asylum is protection provided by a government to someone who has fled another country in order to escape being harmed. The Refugee Act of 1980 regulates asylum policies in the United States. The United States Citizenship and Immigration Services, a part of the Department of Homeland Security, is the government entity that handles most requests for asylum.

Persons asking for asylum in the United States must:

  • ask for asylum at a port of entry (i.e., a border crossing, a seaport, or an airport), or
  • file an application for asylum within one year of arriving in the United States.

There are sometimes exceptions to the one-year requirement. If conditions in a person’s home country have changed or if their personal circumstances have changed within the past year prior to asking for asylum, and those changes affected the person’s eligibility for asylum, or if extraordinary circumstances prevented the person from filing within the one year, the one-year requirement may be waived. Even though circumstances may have changed or prevented the person from applying within the year, an application still must be made within a reasonable time.

To be eligible for asylum, a person must be able to show:

  • that they are unable or unwilling to return to their home country because they were persecuted there or have a well-founded fear that they will be persecuted if they return, and
  • the reason they were (or will be) persecuted is based on any one of five specific grounds: race, religion, nationality, membership in a particular social group, or political opinion.

Someone who is persecuted may have suffered harassment, punishment, injury, oppression, or other physical or psychological harm. Acts of persecution can include violence, torture, threats, false imprisonment, or denial of basic human rights or freedoms. These acts can take the form of genocide, imprisonment and torture of political dissidents, or denying voting rights to members of certain religions.

Persons who are determined to be eligible for asylum are allowed to remain in the United States indefinitely. They can legally work and apply for a green card. They can also request derivative asylum status for their spouse or child (who must be unmarried and under age 21 on the date the asylum application was filed). They can apply for lawful permanent resident (LPR) status after being physically present in the United States for one year after the date asylum was granted.

Certain actions may prevent someone from being granted asylum. If the person did any of the following, they will be denied asylum:

  • ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, nationality, membership in a particular social group, or political opinion;
  • were convicted of a particularly serious crime—including aggravated felonies;
  • committed a serious nonpolitical crime outside the United States;
  • pose a danger to the security of the United States; or
  • firmly resettled in another country before arriving in the United States.

inadmissible to the United States or removable (i.e., deportable) for certain reasons can also prevent someone from being granted asylum.

What is Withholding of Removal, and Who is Eligible?

Withholding of removal is a form of relief that allows a non-citizen in the United States who is facing removal — deportation — from this country to stay because that person is very likely to suffer persecution based on race, religion, nationality, political opinion, or membership in a particular social group in their home country. It is similar to asylum, but is only available to non-citizens who have been put in removal proceedings.

Someone in removal proceedings who hopes to have their removal withheld must be able to show that they are a refugee (someone who has been forced to leave a country because of war or for religious or political reasons) and that there is a very clear probability they will be persecuted if they are sent back to their home country.

They need to be able to provide convincing evidence of persecution, both past and potentially in the future, to be considered for withholding of removal.

For a non-citizen who fears persecution with a return to their home country and finds themselves in removal proceedings when they have been in the United States for more than one year, withholding of removal may be their only option to remain here, since they have missed the one-year deadline for requesting asylum. Withholding of removal may also be an option for someone who is ineligible for asylum because of an aggravated felony conviction, since aggravated felons may have removal withheld in instances where the criminal sentence was less than five years, either served or suspended.

While withholding of removal is similar to asylum, in that it allows a non-citizen to remain in the United States and work legally, it does not allow them to apply for LPR status. Nor does it allow a non-citizen who is granted withholding of removal to apply for derivative status for their relatives. Additionally, if someone who has been granted withholding of removal leaves the United States, they will not be allowed to return. Further, someone who has been granted withholding of removal status may have their case revisited if conditions in their home country change, and the withholding of removal status may be taken away. However, someone who has “firmly resettled” in a country other than their home country may be granted withholding of removal while they would not be eligible for asylum.

Similar to asylum, there are reasons that would prevent the granting of withholding of removal to a non-citizen who fears persecution in their home country. These reasons include:

  • persecution of others,
  • conviction for a particularly serious crime,
  • commission of a serious nonpolitical crime outside the United States, and
  • terrorism.

Is Asylum or Withholding of Removal a Possibility for You?

If you are a non-citizen living and working in the United States, either legally or without status, and believe you may qualify for asylum because you have been here less than a year, you were persecuted in your home country, and you fear persecution if you are forced to return, you should talk to a qualified immigration attorney now to determine your eligibility.

A qualified immigration attorney will also be able to determine if you qualify for withholding of removal if you are already in removal proceedings or have been here more than one year.

The dedicated Kentucky immigration attorneys at Carman Fullerton, PLLC are ready to talk with you about the possibility of obtaining asylum or withholding of removal status. Give them a call today at 859-971-0060 or fill out their online contact form to GET HELP NOW.