Political Asylum Law

by | Nov 8, 2021 | IMMIGRATION LAW

What is asylum? Who qualifies and where did the concept originate? Modern asylum law in the United States came about after World War II and the persecution of the Jews in Europe. We never wanted to repeat the mistakes we made then ever again

Today the asylum law system has very specific and heavily regulated except when it’s not. In order to qualify for asylum an individual needs to fear persecution from his government or by individuals his government supports or condones. The exact language refers to actions by individuals that the government refuses to control or is “unable” to control. That said, the unable to control piece is rarely a basis for relief. This aspect of asylum law can cause confusion amongst immigrants who arrive from home countries plagued by horrific conditions only to find that generalized “crime” and “corruption” alone are not the basis for asylum in the United States.

To be granted asylum the persecution must be on account of one or more of the five grounds listed in the regulations. The grounds are Race, Religion, Nationality, Political Opinion or membership in a Particular Social group. The first four categories are pretty straightforward, keeping in mind that more that discrimination is contemplated. There must be a subjective and objective fear of persecution. The last category – Social Group – is the most challenging and perplexing. It’s also the most exciting and an opportunity for the law to be open to new avenues to assist immigrants. The rules in this category seem to be ever changing as court challenges allow various judges to rule and new presidential administrations weigh in. The language in the law is vague and allows for manipulation. What is “particular?” What is “visible?” Some groups have persisted. Sexual orientation and family have endured. This is the category that allows for battered women to apply for asylum and victims of gang violence and extortion. The previous administration pushed back on these definitions. In a very public position articulated by former Attorney General Jeff Sessions was that U.S. asylum law is not designed to right all the wrongs of the world. Now the current administration is righting the ship. Some argue that “women” is too large a group to consider for asylum. There must be limit. To them we say, the law was a response to the Holocaust. Are Jews too large a group?

Another area of confusion is asylee versus refugee. Refugees are granted their status from another country while asylees apply within the United States. Asylum can be granted in two contexts; affirmatively at the asylum office at USCIS or defensively by a judge in immigration court.

In the end asylum is one of the characteristics if our country that makes us who we are or at least hope to be. Compassionate and welcoming to the world.

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