San Francisco Immigration Attorney

San Jose Asylum Lawyer

Federal law provides that individuals who have suffered or fear persecution based on their particular race, religion, nationality, political opinion or social group in their home countries can apply for asylum in the United States. This most fundamental right is guaranteed by the 1951 United Nations Convention Relating to the Status of Refugees and implemented in the 1967 United Nations Protocol Relating to the Status of Refugees. US Congress codified refugee and asylee protection in 1980 through the Refugee Act. 

To qualify for asylum, the alien must be physically present in the United States. The Attorney General may grant asylum to an applicant who can establish past persecution or a “well founded fear” of future persecution in the home country on account of race, religion, nationality, political opinion, or membership in a particular social group.  

Obtaining asylum grants significant benefits to the recipient. An asylee cannot be removed from the United States unless the government can show that there has been a “fundamental change in circumstances [in the home country] relating to the original claim…” such that he/she may no longer be in danger upon return. 8 C.F.R. §208.24 (2001). An asylee may also obtain work authorization and may apply to adjust his/her status to lawful permanent resident one year after the grant of asylum. Further, an asylee is able to petition for and provide asylee status to his or her spouse and unmarried children under 21.  

             San Francisco Immigration Lawyer
       Call:  (415) 819-1853      (510) 887-5910

Ways To Apply For Asylum  

Within the United States, individuals fleeing persecution can apply for asylum either affirmatively or defensively. Persons applying for asylum affirmatively are those who came to the United States either legally or illegally and have not been placed in removal proceedings by the DHS. The Asylum Office within the Department of Homeland Security adjudicates all affirmative applications.   

By contrast, if an individual is arrested by the DHS or otherwise placed in removal proceedings, s/he may apply for asylum, withholding or removal and/or relief under the UN Convention against Torture as a defense to removal. Defensive applications are heard before an Immigration Judge.
   
Legal Test For Asylum/Refugee Protection   

The Immigration and Nationality Act (INA) sets forth the legal test for asylum eligibility. A person may qualify for asylum if he or she meets the international definition of a refugee.  A refugee is defined as:  

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 
 

INA §101 (a)(42)(A); 8 U.S.C. §1101(a)(42)(a). Accordingly, individuals who can demonstrate that they have suffered past persecution or have a “well-founded fear of persecution” based on one of the five enumerated grounds can qualify for asylum protection.  

For a confidential consultation with the Attorney, Contact a San Francisco Immigration Lawyer

The materials contained in this website are for informational purposes only and do not constitute legal advice.  For legal advice, please contact The Walia Law Firm.