“Asylum” is an ancient legal doctrine that allows an individual who faces persecution in their home country to seek refuge in another country. The practice by medieval churches of offering sanctuary to accused criminals is, in many ways, a direct ancestor of asylum law in the United States, although the practice of granting asylum to foreigners may date back to ancient Egypt or earlier. In the U.S., a person may make an affirmative application for asylum, in which case an asylum officer with U.S. Citizenship and Immigration Services (USCIS) makes a determination. Or they may claim asylum as a defense against deportation, which means they must present their claim to an immigration judge with the Executive Office for Immigration Review (EOIR). If granted asylum, the person may be able to adjust their status to permanent residence and later apply to become a naturalized citizen.
Under the right to sanctuary, an accused criminal could seek refuge in a house of worship, such as a temple in ancient Rome or a church in medieval England. Since these places were considered sacred, even in a legal sense, state authorities could not arrest a person who had been granted sanctuary. This specific doctrine no longer has any legal force in most of the world, but the right of asylum draws on some of the same principles.
A common claim for asylum involves fear of punishment for acts that are permitted in the host country but are deemed illegal in the refugee’s home country. People fleeing communist countries during much of the 20th century, for example, sought asylum in the U.S. and its allies to avoid prosecution—or summary punishment—for acts like speaking out against the government, which are considered to be fundamental rights under U.S. law.
People who are outside the U.S. must apply for refugee status in order to enter the U.S., while people who are already here can apply for asylum. U.S. immigration law defines a “refugee” as a person who is outside of their home country and unable to return because of a “well-founded fear of persecution” based on their race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
In addition to a “well-founded fear of persecution,” an asylum seeker must demonstrate that the government is either directly involved in the persecution or is unwilling or unable to protect them. They must also show that no “safe third country” exists where they could go instead of the U.S. 8 U.S.C. § 1158(a)(2)(A). Finally, a person must apply for asylum within one year of arriving in the U.S., unless they can show “changed circumstances” regarding their eligibility for asylum, or “extraordinary circumstances” causing the delay in filing. 8 U.S.C. § 1158(a)(2)(D).
The “well-founded fear” requirement is perhaps the most contentious aspect of asylum law. The asylum officer or EOIR judge reviewing the case must determine that the asylum seeker has made a credible claim of persecution. The asylum seeker does not, however, have to prove that persecution is likely to occur if they are forced to return, according to the U.S. Supreme Court’s ruling in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). They only have to prove that their subjective fear of persecution is reasonable and credible.
Immigration attorney Samuel C. Berger represents individuals who wish to immigrate to the New York and New Jersey areas through family or employment, people who want to bring a loved one here, and employers who want to hire foreign workers. To schedule a confidential consultation with a knowledgeable and experienced immigration advocate, contact us today online or at (212) 380-8117.
More Blog Posts:
After More than Two Decades in New York City, Man Finally Becomes Naturalized U.S. Citizen, New York & New Jersey Immigration Lawyer Blog, November 26, 2014
How Immigration Laws Regarding Refugees and Asylum Relate to the Situation at the U.S.-Mexico Border, New York & New Jersey Immigration Lawyer Blog, July 9, 2014
Police, Prosecutors Advocate for Lebanese Immigrant Who Helped Crack a Murder Case, New York & New Jersey Immigration Lawyer Blog, January 5, 2012