Asylum or Refugee Status: Who Is Eligible?

Asylum and refugee status are special legal protections available to people who have left their home country for their own safety and are afraid to return to any place within that country. (See 8 U.S.C. § 1158.)

If you can relocate and live safely within your home country, you will not be able to demonstrate that you have a well-founded fear of persecution and will not be granted asylum in the United States.

What's the difference between asylum and refugee status under U.S. immigration law? That is, who should seek asylum status, and who should seek refugee status? It's simply a matter of where you are when you apply.

People outside of the U.S. must apply for refugee status, typically through the U.N. High Commission for Refugees. (They cannot specify that they'd like to go the U.S. or any particular country, however.) An annual limit is placed on total approvals, by the U.S. President. That number went to record lows during the Trump Administration (15,000 per year), though the Biden Administration plans to raise it to 125,000 for 2022.

People who have already made it to the U.S. border or the interior (perhaps by using a visa or by entering illegally) can, in theory, apply for asylum status. This also became much more difficult under the Trump Administration, owing to ever-changing policies such as "Wait in Mexico." Then later, following the start of the coronavirus (COVID-19) pandemic, the Trump Administration extended a Centers for Disease Control (CDC) Order giving permission to border agents to expel anyone who arrived without an entry visa or permission, without conducting interviews to see whether they have a credible fear of persecution. So far, the Biden Harris Administration has not lifted this order.

Once a person is granted, both refugee and asylee statuses allow staying in the United States indefinitely. Asylees and refugees are given permission to work and are allowed to apply for a green card within one year of either entering the United States as a refugee or being approved for asylum.

But not everyone qualifies for asylum or refugee status. You must meet some strict requirements, as described in this article. In particular, you must show two things:

• You are unable or unwilling to return to your home country because you have been persecuted there in the past or have a well-founded fear that you will be persecuted if you go back.
• The reason you have been (or will be) persecuted is connected to one of five things: your race, religion, nationality, membership in a particular social group, or your political opinion.

Let's look more closely at what these requirements mean.

What Is Persecution?

To persecute means to harass, punish, injure, oppress, or otherwise cause someone to suffer physical or psychological harm.

U.S. immigration law does not list specific examples of the kinds of persecution that would qualify someone for asylum or refugee status. However, from the law that has been developed through court cases, we know that it can include such acts as threats, violence, torture, inappropriate imprisonment, or denial of basic human rights or freedoms.

Historically, for example, the need for asylum or refugee status has been recognized in situations where a foreign government has:

• imprisoned and tortured political dissidents or supposed undesirables
• fired weapons on protesters
• committed genocide against a certain race
• made sure that members of a certain religion were left out of the political process,
• and much more.

Even if a foreign government stands by while someone else commits acts of persecution (for example, if the authorities are unwilling or unable to exercise control while members of a vigilante squad gang up on gays and lesbians or while members of a guerilla group threaten or kidnap people who won't voluntarily join them), this too can qualify as persecution, which would support a claim for asylum or refugee status.

There is one type of persecution that is actually listed in the law: Being forced to undergo (or the fear of being forced to undergo) a program of "coercive population control." (See I.N.A. § 101(a)(42)(B).) This is aimed at victims of the kind of forced abortion and sterilization that takes place in mainland China.

Again, remember that the persecution must be connected to one of five grounds—race, religion, nationality, membership in a social group, or political opinion—discussed in more detail below. For example, violence directed against gays and lesbians is recognized as persecution connected to membership in a social group. But violence against an individual who happens to have angered a local criminal does not have the necessary connection to one of the five grounds, so the victim wouldn't be eligible for asylum or refugee status from the U.S. government.

In recent years, the U.S. government recognized persecution based on gender (usually based on the "particular social group" category). This allowed some women to gain asylum based on having undergone (or fearing they'll be forced to undergo) cultural practices such as female genital cutting, forced marriage, or domestic violence. However, under the Trump Administration, this recognition was significantly rolled back.

Also remember that your fear of future persecution must be "well-founded." In other words, you will want to show that you have at least a one in ten chance of experiencing the feared harm. (See INS v. Cardoza Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987).)

What Do the Five Grounds of Persecution Mean?

As mentioned above, the U.S. government grants asylum or refugee status to a person who has suffered or fears persecution that's based on one of only five grounds. The first three grounds—race, religion, and nationality—are fairly self-explanatory. Let's look at the remaining two—political opinion and membership in a particular social group.

Political opinion. Persecution of this kind means you hold opinions that the authorities don't tolerate, most likely critical of the government's policies or methods. Of course, you would need to show that the authorities know about your opinions—otherwise, they'd have no reason to come after you. It will help if you have, for example, spoken in public, written publicly about your criticisms, or taken part in antigovernment protests. People have proven persecution for political opinion based on having taken part in student demonstrations, been active in labor unions, advocated independence for a particular ethnic group, or joined an opposition political party.

You can also qualify for asylum or refugee status based on political opinion if the authorities mistakenly assume that you hold certain opinions, perhaps based on some other personal characteristic like your religion or family group. (This is called "imputed political opinion.")

Membership in a particular social group. This category is the most difficult of the five to define and is the subject of many legal arguments. A social group is described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot—or should not be expected to—change it, the group has distinct boundaries for membership, and the group is recognized within society as a distinct entity.

Examples of particular social groups whose members have been accepted as asylees or refugees by the U.S. government include tribes or ethnic groups, social classes (such as educated elite), family members of dissidents, occupational groups, homosexuals, and members or former members of the police or military (who may be targeted for assassination).

If you are applying for asylum based on your membership in a particular social group, be aware that the laws governing membership in a particular social group are subject to change. Under the Trump administration, many groups that were previously considered particular social groups no longer qualified, and it remains to be seen where the law will settle in future years.

If You Think You're Eligible for Asylum

Even if you think you're eligible for asylum or refugee protection in the United States—that is, you've experienced persecution based on one of the five grounds—you still need to not only prepare an application but supplement it with evidence proving your claim. 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.

Also realize that you can meet the above criteria and still be refused, as explained in Bars to Receiving Asylum or Refugee Status. For in-depth information on asylum and refugee protections and all key immigration law issues, see U.S. Immigration Made Easy by Ilona Bray (Nolo).

Determining eligibility and applying for asylum or refugee status isn't easy. Start by talking with an experienced attorney, if possible. Some nonprofit organizations will provide free or low-cost attorneys to low-income applicants. Or you can use Nolo's Lawyer Directory to find an experienced immigration attorney near you.