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Who Can Apply For Asylum In The United States?

Los Angeles Immigration Lawyer

 

Who Can Apply For Asylum In The United States?

Many foreigners who are in the US and face problems while extending their legal status decide to apply for asylum. However, not everyone is eligible for asylum. Only people who meet the statutory definition of “refugee” can file an application for asylum.

What are the Requirements for Meeting the Statutory Definition of Asylum?

People who are already in the US or who seek admission into the US and meet the statutory definition of “refugee” are eligible for applying for asylum. The Immigration and Nationality act defines refugee as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion…” INA § 101(a)(42).

Statutory Definition of Refugee Broken Down in Four (4) Elements

In Matter of Acosta, the Board of Immigration Appeals broke down the statutory definition of “refugee” into four elements: (a) the foreigner must have a fear of persecution; (b) the fear must be well-founded; (c) the fear must be on account of one of the grounds specified in INA § 101(a)(42); and (d) the foreigner must be unable or unwilling to go back to his home country or the country of his last habitual residence because of persecution or his well-founded fear of persecution. Matter of Acosta, 19 I. & N. Dec. 211, 219 (BIA 1985). Basically, the alien must show that he is unable or unwilling to return to his home country because of his well-founded fear of persecution and that the fear is on account of one of the grounds specified in INA § 101(a)(42).

In order to show a well-founded fear of persecution, the applicant does not have to prove that it is more likely than not that he will be persecuted in his home country. I.N.S. v. Cordoza-Fonseca, 480 U.S. 42, 449 (1987). An applicant may meet the requirement of having a well-founded fear of persecution if he is able to show that a reasonable person in his place would fear persecution. Bastanipour v. I.N.S., 980 F.2d 1129, 1133 (7th Cir. 1992).

The applicant must demonstrate both objective and subjective fear. Acewicz v. U.S. I.N.S., 984 F.2d 1056, 1061 (9th Cir. 1993) (internal citations omitted). The applicant may satisfy the subjective component by his own credible testimony that he genuinely fears persecution. Id. (internal citations omitted). The objective component may be satisfied by credible, direct and specific evidence of facts supporting reasonable fear of persecution. Id. (internal citations omitted). Potential asylum applicants shall also keep in mind that past persecution creates a presumption of future persecution which can only be overcome by a change in country conditions. In re Kasinga, 21 I. & N. Dec. 357, 371 (BIA  1996).

The applicant’s well-founded fear of persecution must be on account of one of the grounds specified in INA § 101(a)(42). These grounds include race, religion, nationality, membership in a particular social group, and political opinion. INA § 101(a)(42). If the alien’s fear of persecution is not based on one of these grounds, the alien is not eligible for applying for asylum. All the grounds specified in INA § 101(a)(42) are self-explanatory, except the membership in a particular social group.

A particular social group must be defined by an immutable characteristic which the members of the group either cannot change or shall not be forced to change because it is fundamental to their individual identities or consciences. Matter of Acosta, 19 I&N Dec 211, 233 (BIA 1985). A group can be considered to be a particular social group only if it meets the requirements of “particularity” and “social distinction.” The “particularity” requires that a particular social group is defined by characteristics that provide a clear benchmark for determining who is a member of the group. Matter of W-G-R-, 26 I. & N. Dec. 208, 213 (BIA 2014) (internal citation omitted). On the other hand, the “social distinction” requires that society in general perceive, consider or recognize persons sharing the particular characteristic to be a group. Id. at 217.

What is the Statutory Definition of “Refugee”?

To sum up, only aliens who meet the statutory definition of “refugee” can apply for asylum in the US. The applicant will have to show that he has a well-founded fear of persecution on account of one of the grounds specified in INA if he goes back to his home country.

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