Checklist: Do You Qualify for Asylum in the U.S.?
A handy series of questions to help you determine whether you're likely to be approved for U.S. asylum.
Thinking about applying for asylum? The checklist below will help you determine whether you have a good claim, and make sure you haven’t overlooked any possible barriers to getting approved.
But first, make sure you understand what asylum means. A grant of asylum is made to people who are in the U.S. and fear returning to their home country because of past persecution or a fear of future persecution. It wins you the right to live and work indefinitely in the U.S. and the right to apply for lawful permanent residence after one year. Any spouse and dependent (children under 21) listed on your application at the time of adjudication will also be granted asylum. You can learn more on the “Asylum & Refugee Status” page of Nolo’s website.
1. Do You Meet the Basic Eligibility Criteria for Asylum?
A person who is physically present in the U.S. can apply for asylum. This includes undocumented people who entered without inspection as well as those who were inspected and admitted and those who overstayed their visas.
You are eligible for asylum if you are a refugee. The term refugee is defined in the Immigration and Nationality Act (INA) at Section 101(a)(42)(A), as someone who:
- is outside his or her country and unable or unwilling to return to that country
- is unable or unwilling to avail himself or herself of the protection of that country
- can demonstrate that he or she has suffered persecution or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion, and
- has never persecuted anyone.
The only other way a person can be a refugee is to have undergone a forced abortion or a forced sterilization or have a well-founded fear of being forced to undergo such a procedure or be subjected to persecution for such failure, refusal, or resistance.
2. Did You Suffer or Do You Reasonably Fear Persecution?
To demonstrate that you are a refugee you must show, that you have suffered or fear persecution. There is no one definition of persecution within the immigration law or elsewhere. The person who decides your case (an Asylum Officer or Immigration Judge) will listen to the facts, paying close attention to how the harm affected you individually.
For details, see “What Counts as 'Persecution' When Applying for Asylum or Refugee Status.”
3. Can You Prove Your Claim of Persecution?
To show that you were, in fact, a victim of persecution you will do best to gather various forms of evidence to present to the U.S. government officer or judge who will review your case and meet with you. You can use your own testimony, statements by witnesses, newspaper and other reports discussing your case or the human rights situation in your country, expert witness statements, and more. See “Preparing Persuasive Documents for Your Asylum Application” for details.
4. If Your Persecution Took Place in the Past, Is Your Country Safe to Return to Now?
If you suffered persecution in the past, you are presumed to have a well-founded fear of future persecution unless the U.S. government can prove that the conditions in your country have changed to such an extent that you no longer have a well-founded fear of persecution.
If the government succeeds in proving that it would be safe for you to return to your country you will not get asylum. However, if you can show that you were so severely harmed that you should not be forced to return to your country, you can be granted asylum nonetheless. (See 8 C.F.R. 208.13(b)(1)(iii) and Matter of Chen, 20 I&N Dec. 16 (BIA 1989).)
Alternatively, you might be able to demonstrate that you would suffer other serious harm if you returned to your country. (See 8 C.F.R. 208.13(b)(1)(iii)(B).) Examples of other serious harm could be criminal or gang activity or natural disasters.
5. If You Fear Future Persecution, Is That Fear Truly Well Founded?
If you left home because you have a well-founded fear of future persecution, you will want to demonstrate that you have at least a one in ten chance of experiencing that harm. (See INS v Cardosa Fonseca, 480 US 421, 107 S.Ct. 1207 (1987).) There are four standards to help you prove that your fear of future persecution is reasonable and thus well founded. These are:
- You possess, or a persecutor believes that you possess, a characteristic that a persecutor wishes to overcome.
- A persecutor is aware or could become aware that you posses this characteristic.
- A persecutor has the capability of persecuting you.
- The persecutor is inclined to persecute you.
(See Matter of Mogharrabi, 19 I&N Dec, 439 (BIA 1987).)
6. Does a Nexus (Connection) Exist Between Who You Are and Why You Were Persecuted?
To be granted asylum, the persecution you suffered or fear must be on account of your race, nationality, religion, membership in a particular social group, or political opinion. The persecution can be tied to one or all of these factors.
Why did the persecutor harm you? The persecutor’s motivation must be a central reason for the harm. For details, see “Proving the Nexus or Reason for an Asylum Claimant’s Persecution.”
7. Could You Avoid Persecution By Moving to a Different Part of Your Country?
It is not enough to convince the decision-makers in your case about the persecution and nexus to one of the five grounds. You must also show that you would not be safe living in any other place in your country. For example, why couldn’t you resolve your fears by moving to another city hundreds or thousands of miles from the persecution?
Let's say, for instance, you were persecuted where you lived in Alexandria, Egypt. You will need to explain why you would not be safe living in Cairo (or anywhere else in Egypt). Is your persecutor the State? Does your persecutor have ties throughout the country?
If it isn’t reasonable for you to move to escape the persecution, you need to explain why. For example, are you a woman in a male-dominated country who could not support herself if you were to leave your family for a different location?
8. Are You Barred From Receiving Asylum Due to a Criminal Record or Being a Security Risk?
Even if you are a refugee and seemingly eligible for asylum, you can be barred from this relief if you have committed certain crimes or pose a threat to U.S. safety and security, as discussed in ”Can I Apply for Asylum With a Criminal Record.” (If this is the case, you will definitely want to get an attorney’s help before applying.)
9. Are You Barred From Receiving Asylum as a Persecutor of Others?
If you have ordered, incited, assisted, or participated in the persecution of any other person because of that person's race, religion, nationality, membership in a particular social group, or political opinion, you will not be granted asylum in the United States. See “Bars to Receiving Asylum or Refugee Status” for more information.
10. Are You Barred From Receiving Asylum Because You Resettled in Another Country Before Coming to the U.S.?
If you became "firmly resettled" in another country before coming to the U.S., you will also be barred from a grant of asylum. This means that you have:
- an offer of permanent residency or citizenship by another country
- made permanent housing arrangements and traveled in and out of the adopted country, or
- achieved economic independence because of education, employment, or the exercise of professional or business affairs in the adopted country.
See “Bars to Receiving Asylum or Refugee Status” for more information.
11. Have You Missed the One-Year Filing Deadline for Asylum?
An asylum application must be filed within one year after an alien’s most recent entry into the U.S. unless warranted by changed or extraordinary circumstances (as described in “Can I Still Apply for Asylum After the One-Year Filing Deadline?”. The one-year period is determined by counting backwards 364 days from the date your application was received by the appropriate U.S. government office.
If your most recent entry to the U.S. was without inspection, you will have to demonstrate when you entered. You can submit evidence showing that you were outside the U.S. in the past year. You can also bring witnesses or submit affidavits from people who claim to have picked you up when you entered the United States.
Determining whether you have a good claim for asylum is complicated. It is a good idea to meet with an attorney who specializes in asylum and refugee law.