“Can I file for asylum in the United States” is a question that immigration attorneys hear frequently. When a client poses it, I usually answer with another question: “Are you afraid to return to your country, no matter what?” If their answer is a resounding “No,” then it is simple, “You cannot ask for asylum.” (But continue reading: that “No” may change.)
On the other hand, when the answer is “Yes,” I introduce another question: “And why are you afraid to return to your country?” If the person answers, “Because I was persecuted or I fear that someone will persecute me if I return to my country,” guess what? I follow with another question. “What do you mean by persecution?” If what happened to the client is something that can be considered as persecution under the law, there is yet another question: “Why did the persecution happen?”.
I stop asking questions if the client tells me one of the five possible reasons that make someone eligible for asylum. “I was or will be persecuted for:
1) My gender (for being a man or woman),
2) My religion (for being a Jewish, Muslim, Christian, or any other cult in conflict within a certain country),
3) My citizenship (for being Irish, Ukrainian, et cetera)
4) My race (for having an African, Hispanic or any other ancestry that is not well seen in your country), or
5) Because I am a member of a ‘particular social group.’”
The first four points are quite clear, but the last is worth clarifying. A “particular social group” is one which:
1) Is distinguished within the society hosting it (for example, certain native groups),
2) Has a characteristic that they cannot and should not change (for example, sexual orientation or gender identification), and
3) Is defined by a particular trait that not everyone has.
If the persecution is caused for one of the reasons above, I ask (be patient, these questions have a reason): “Who wants to mistreat you and why?” If the persecutor is the government or a person or group that the government cannot control (for example, FARC guerrilla in Colombia), or does not want to control (for example, paramilitary groups), then we can start to consider requesting asylum in the United States.
If the client answers “No” to one of these questions, I ask, “Is (or was) anyone in a situation similar to yours (a relative, an acquaintance, a co-worker) the victim of persecution in your country for one of the reasons above?” While answering this question, many immigrants realize that they may apply for asylum.
Asylum should be requested within a year of the person’s arrival in the United States, but there are exceptions. That is why the determination of whether one can seek asylum in the United States is a question that should be taken to an attorney who has broad experience in handling such cases. (And by broad experience I mean more than 50 cases.)
Remember that this is an informational column. If you have questions about whether you qualify for an asylum, talk to an immigration lawyer!