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What Is Asylum and Who Qualifies for It?

As the nation most often associated with leadership in the free world, the United States offers refuge and asylum to foreigners whose lives have been greatly compromised by factors they cannot control. In general, those who seek refuge and asylum are categorized as special immigrants whose potential return to their homeland will place them in grave danger due to prosecution on the basis of race, ethnicity, social group, or political affiliation.

Refugees may seek protection as long as they are not in the U.S. at the time they make a formal application. The first legal requirement is established by the State Department: There must be a humanitarian concern as stated in the U.S. Refugee Admissions Program (USRAP). The refugee applicant must then demonstrate the existence of persecution as well as his or her admissibility to the United States. Refugee applications are processed following the priorities set by the USRAP.

Asylum seekers are similar to refugees with one major exception: They are already in the U.S. In many cases, asylum applicants may have entered the U.S. illegally or became undocumented immigrants by overstaying their student or work visas or permanence permits. Foreigners seeking asylum must prove that their deportation would bring grave danger due to persecution.

The asylum petition process follows two methods of legal reasoning: Affirmative and defensive. The former is an administrative process while the latter is judicial.

The affirmative petition is handled by the U.S. Citizenship and Immigration Services (USCIS) through a filing of Form I-589, which prevents deportation and removal. This application must be filed within one year of living in the U.S., and applicants can include their spouses and children under the age of 21. Extraordinary circumstances may allow asylum seekers to file Form I-589 after living in the U.S. longer than a year.

A defensive petition for asylum takes place before immigration court. When a foreigner receives an order for deportation and removal, he or she may apply for asylum on the basis of persecution. Defensive asylum petitions will more than likely require the work of experienced San Diego immigration attorneys since the cases are handled before the Executive Office for Immigration Review.

For more information about seeking refuge or asylum or family law immigration in San Diego, contact the professional immigration lawyers at KS Visa Law by calling (858) 874-0711. We can answer any questions you have and schedule your free consultation.

April 2024