Political Asylum and Refugee Law

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 What is Political Asylum vs. Refugee Immigration Status?

Political asylum may be sought by individuals who are already located in the United States and who fear persecution in their home countries. Refugee immigration status, on the other hand, is for individuals who wish to come to the United States because of fear of persecution in their home countries.

These individuals may apply for refugee immigration status while they reside outside of the United States. If their application is accepted, they may become a political refugee.

What U.S. Agency Decides Political Asylum and Refugee Issues?

Prior to September 2002, the agency which was charged with overseeing immigration issues was known as the Immigration and Naturalization Service (INS). President Bush and Congress signed the Homeland Security Act in September 2002.

This act transferred the powers of the INS to the Department of Homeland Security. The Bureau of Citizenship and Immigration Services (BCIS) now performs the immigration service functions the INS previously served.

Seeking Political Asylum or Refugee Immigration Status in the United States

Political asylum and refugee immigration statuses may be available to individuals who reside in the United States due to their fear of prosecution or that they have experienced persecution in their homeland.

Individuals who are seeking a political asylum visa or refugee immigration status must have a fear that their home country may persecute them or be able to show that their home country has persecuted them due to their:

  • Race;
  • Nationality;
  • Religion;
  • Membership in a certain social group;
  • Political opinion.

One reason that is not included as a reason for which the Bureau of Citizenship and Immigration Services may grant political asylum or refugee status in the United States is economic suffering.

Requirements for Seeking Political Asylum in the United States

If an individual seeks political asylum because they are afraid of persecution in their home country, they must apply for political asylum within 1 year of entering the United States. In order to apply for asylum, an individual is required to file Form I-189, Application for Asylum and for Withholding of Removal.

There is no fee to apply for asylum. One year after an individual is granted political asylum, they are given an opportunity to apply for a permanent visa or green card by. They can do so by filing Form I-485, Application to Register Permanent Residence or to Adjust Status.

A separate I-485 application is required for each family member who received asylum based on the individual’s case.

Are There Any Quotas Limiting Those Seeking Political Asylum or Refugee Status?

Each year, the President of the United States sets a quota, or limit, on the number of individuals who are permitted to enter the United States under refugee status. According to immigration laws, officials of the Executive Branch review the refugee situation and consider whether there are sufficient humanitarian reasons for admitting refugees into the U.S.

A Presidential Determination is then drafted and signed by the President, which provides the number of refugees who are permitted to enter the United States the next year. There is no quota on the number of individuals who are allowed to gain asylum.

What if I Do Not Fit the Criteria for Political Asylum or Refugee Status?

An individual may not want to stay in the United States due to a fear of their home country. However, they do not fit the criteria for political asylum or refugee status; there are some other options that may be available to them, including temporary protected status (TPS) and amnesty.

Further, the conditions of an individual’s home country may be dangerous. In that case, the Secretary of Homeland Security may designate that country to be unsafe for the return of its nationals, and the USCIS may grant citizens of that country TPS status. If an individual has been living in the United States illegally or their immigration status has expired, they may be eligible for amnesty, provided that is the only illegal activity in which they have engaged.

The United States issues green cards for those individuals who are granted amnesty. Congress determines which groups of individuals should be granted amnesty.

Because only certain individuals are eligible for amnesty, an individual who wishes to seek asylum should consult an immigration lawyer to see if there are any amnesty opportunities currently available.

What Is Religious Persecution According to Immigration Laws?

Many individuals know of immigration terms such as political asylum and political refugee. Some individuals, however, may not be aware that an individual can obtain asylum or refugee status based on religious persecution.

The concept of religious asylum is similar to political asylum. A foreign national may apply for various protections in the United States if they have experienced religious persecution in their home country.

Religious persecution may include:

  • Victimization due to religiously motivated violence, resulting in bodily harm or suffering;
  • Unjust imprisonment for religious beliefs;
  • Inhumane treatment such as:
    • degradation; slavery;
    • torture based on religious belief; and
  • Human rights violations.

A religious refugee may apply for entrance into the United States to receive protection from these types of actions. In some cases, these individuals may apply for certain benefits, including financial assistance and relocation counseling.

What Is Temporary Protection Status?

Temporary protection status (TPS) is a category of immigration status that is granted to certain individuals from specific countries. TPS is for immigrants who are temporarily prevented from returning to their country of origin because of safety concerns.

TPS may also be available in other cases, such as when a country is unable to process the return of its citizens properly. Countries which are eligible for protected status designations include:

  • El Salvador;
  • Haiti;
  • Honduras;
  • Nicaragua;
  • Somalia;
  • Sudan;
  • South Sudan; and
  • Syria.

This list may be changed or updated at any time, as different countries are added nearly every year. Individuals who have been granted TPS are not automatically granted lawful permanent residence status, hence the term. “temporary protection.”

However, the individual may become eligible for permanent resident status or United States citizenship later on.

Who Is Eligible for Temporary Protected Status?

Only certain aliens who are traveling from the countries listed above are eligible for TPS, which is similar to political refugee and asylum requirements. The requirements for TPS may include:

  • Being a national of a country that is included on the TPS list or habitually residing last in a designated country if the individual is without nationality;
  • Meeting the various requirements for initial, open, or re-registration filing dates;
  • Having a continuous physical presence (CPP) in the U.S. since the date the country became a designated country; and
  • Having continuous residence (CR) in the U.S. since the specific date listed for the country of origin, which will be different for each country. Brief, casual departures out of the U.S. are sometimes allowed.

Sometimes, the requirements can be calculated, especially those related to continuous physical presence and continuous residence. These calculations sometimes require the assistance of an attorney, as the formulas involved are complex.

It is important to note that an individual who is eligible for TPS may be disqualified or have their privileges revoked for various reasons, which may include:

  • Being convicted of a felony;
  • Being convicted of 2 or more misdemeanors in the United States;
  • Failure to keep up with CR and CPP requirements;
  • Other reasons.

Should I Contact an Attorney?

If you have any issues, questions, or concerns related to political asylum or refugee issues, it is very important to consult with an asylum lawyer. Similar to other immigration issues before the USCIS, the procedural rules and regulations are extremely detailed and narrow.

Your political asylum lawyer can assist you in navigating all of the requirements. Your lawyer can also assist you with determining whether you are eligible for political asylum, refugee status, or another type of status before you present your case to the USCIS.

Your attorney will be there with you any time you are required to appear before a court or the USCIS. Having an attorney handle your immigration issue gives you the best chance at an efficient and expedient approval.


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