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Political Asylum vs. Refugee Immigration Status

Political asylum is a status which may be sought by individuals who are already located in the United States and who are afraid of being persecuted in their home country. Refugee immigration status is for individuals who want to come to the United States out of fear of persecution in their home country.

These individuals may apply for refugee immigration status while they are still residing outside of the United States. If the individual is accepted, they can become political refugees.

U.S. Agency That Decides Political Asylum and Refugee Issues

Before September 2002, the agency that was charged with overseeing immigration issues was the Immigration and Naturalization Service (INS). In September 2002, Congress passed and President Bush signed the Homeland Security Act, transferring the powers of the INS to the Department of Homeland Security. The immigration service functions of the INS are now placed under the Bureau of Citizenship and Immigration Services (BCIS).

What Does an Individual Need to Seek Political Asylum or Refugee Immigration Status in the United States?

Refugee immigration status and political asylum status are available to individuals who reside in the United States because of fear or experienced persecution they have experienced in their home country. Individuals who seek refugee immigration status or political asylum must fear that their home country will persecute them or they have been persecuted due to their:

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

Economic suffering is not an applicable reason for which the BCIS will grant refugee status or political asylum in the United States.

Requirements for Seeking Political Asylum in the United States

If you seek political asylum because you are afraid of persecution in your home country, you must apply for political asylum within one year of entering the United States. In order to apply for asylum, you must file Form I-189, Application for Asylum and for Withholding of Removal.

No fee is required to apply. One year after you are granted political asylum, you are given the opportunity to apply for a permanent visa, or green card 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 your case.

In order for an individual to be eligible for political refugee status in the United States, the individual is required to show that they have a well-founded fear of prosecution. This issue will be analyzed using the standards of the 1987 Supreme Court case, INS v. Cardoza-Fonseca.

In order to meet this standard, the individual will be required to show that they face persecution or danger in their home country because of their political beliefs or membership in a political group. This may be demonstrated through threats of violence, but that element is not required.

Each case will be examined based upon circumstances such as the individual's country of origin as well as many other factors. One way for an individual to prove this element is to show threats and past examples of persecution.

However, so long as an applicant can demonstrate that a reasonable individual would fear for their safety or freedom under the same circumstances, they will be able to fulfill this requirement. For example, an individual can show that they were imprisoned for political statements or affiliations to satisfy this element.

In addition, an individual can provide evidence of persecution through:

  • News stories;
  • Video;
  • Photographs; and
  • Witness testimony. 

How Does a Political Refugee Legally Enter the United States?

Each year, there are thousands of individuals from around the word who seek to enter into the United States in order to obtain protection for their:

  • Religious beliefs;
  • Human rights stances; and
  • Many other positions which put them at risk of violence or imprisonment.

One of the most influential reasons that an individual may apply for refuge is that they may face persecution for their political beliefs or actions in their home country. Applying for protection, however, is, in some cases, a bureaucratic minefield which confuses many individuals and often takes the expertise of a lawyer to navigate.

Who Determines Who Receives Status as a Political Refugee?

For individuals who are seeking protection, they may have to apply for official refugee status with the United Nations High Commissioner for Refugees. The United Nations High Commissioner for Refugees is the arm of the United Nations which deals exclusively with these issues.

The Commissioner's office will conduct a background check on the individual as well as an extensive search to determine if the applicant is eligible. The application process may include interviews, either in person or via electronic means, and their refugee status will either be approved or denied.

Individuals who are seeking to enter the United States as political refugees are able to go to any embassy in either their home country or in another host country if they have fled their own country. If the United Nations approves an individual's refugee status, the employees at the embassy will review their eligibility and determine whether or not to begin the resettlement process.

If the individual's application is approved, they can contact the State Department to begin obtaining travel documents and the other necessary paperwork that is required to transfer the individual or individuals to the United States.

Does the Persecution Need to Come from the Government?

The persecution is not necessarily required to come from the government. An individual can seek political refugee status even if the persecution is not coming from the government or an organization under government control, such as:

  • The military;
  • Law enforcement; or
  • Other forces.

Persecution may also come from groups including:

  • Paramilitary organizations;
  • Guerilla and rebel groups; and
  • Other groups with power and influence in the country.

So long as the individual can meet those requirements set by United States laws, they can still be eligible for refugee status.

Are Political Refugee Status and Asylum Claims the Same Thing?

No, as previously noted, an asylum claim and political refugee status are not the same thing. There are some similarities between the two but each has a separate immigration route.

Political refugees apply for their status while they are located outside of the United States for safe passage into the U.S. Asylum refers to an individual who has already entered the United States, or has attempted to enter through a port of entry, and is filing an application to remain in the U.S.

Certain protections and programs are available for refugees that may not be available to asylum seekers. This may include assistance for medical and living expenses until such time as the refugee can obtain financial stability in their new country. 

Are there quotas limiting those seeking political asylum or refugee status?

There are numerous different ways which a foreign national may enter into the United States. It is important to note, however, that many of these categories have a quota or cap on how many individuals can enter each year.

The numbers for each category are determined each year by the President with Congressional consultation, pursuant to the Immigration and Nationality Act. Because of this, the number of refugees may vary widely each year. For example, the refugee cap for all categories in 2010 was 80,000. In contrast, the cap was 45,000 in 2018.

Under immigration law, officials of the Executive Branch review the refugee situation, and enter into a discussion of whether there are sufficient humanitarian reasons for admitting refugees into the U.S. A Presidential Determination that is then drafted and signed by the President, sets forth the number refugees who can enter the U.S. the next year.

There is no quota or limit on the number of people allowed to gain asylum.

What happens if I do not meet the criteria for political asylum or refugee status?

As with any immigration issue before the USCIS, procedural rules and regulations are very detailed and narrow, and an immigration lawyer can help you sift through them. An immigration lawyer can also help you determine if you are eligible for political asylum, refugee status, or another status before you present your case to the USCIS.

If you wish to stay in the United States because you fear your home country, but do not fit into the criteria for political asylum or refugee status, there are a few other options available to you:

  • Temporary Protected Status (TPS) – If conditions in your home country are dangerous, the Secretary of Homeland Security may designate that country to be unsafe for the return of its nationals, in which case the USCIS may grant TPS status to citizens of that country.
  • Amnesty – If you have already been living in the United States illegally, or your immigration status has expired, you may be eligible for amnesty, provided that that is the only illegal activity in which you have engaged. The United States issues green cards for those granted amnesty. Congress decides which groups of persons should be granted amnesty. Because only certain people are eligible for amnesty, you should consult an immigration lawyer to see if there are any amnesty opportunities currently available.

How Can A Lawyer Help me With Political Refugee Legal Issues?

As with any immigration issue before the USCIS, procedural rules and regulations are very detailed and narrow, and an immigration lawyer can help you sift through them. An immigration lawyer can also help you determine if you are eligible for political asylum, refugee status, or another status before you present your case to the USCIS.

Yes, it is essential to have the assistance of an immigration attorney for any issues, questions, or concerns you may have related to political refugee legal issues. Immigration laws in the United States are complex and the policies may change depending on the political leaders at the time.

Because of this, having an attorney is essential if you are seeking political refugee status. Your attorney can review your situation, advise you of current immigration laws, and assist you with applying for refugee status.