Asylum and Refugee Status

Under U.S. law a refugee is defined as any person outside their country of nationality, or in the case of a person having no nationality, their last habitual residence, who is unable or unwilling to return to, and is unable or unwilling to avail themselves 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. Spouses and children of refugees are admitted as refugees even if they would not qualify as such on their own.

An asylee is a person who meets the definition of refugee, but who is either physically present in the U.S. or is at a land border or port of entry of the U.S. at the time they seek refuge.

A person who presents themselves at the border and requests asylum or expresses a fear of persecution if returned home is referred to an Asylum Officer who determines whether the person has a credible fear of persecution. If so, then the person is referred to an Immigration Judge to present their asylum claim.

A person may also file an affirmative application for asylum after entry to the U.S. with the Asylum Office. However, the application must be filed within one year of arrival in the U.S., unless there were changed circumstances or extraordinary circumstances. The Asylum Office may grant, deny or refer an applicant to a removal hearing before an Immigration Judge where the applicant can renew their asylum claim.

Finally, a person placed in removal proceedings may file, defensively, an application for asylum with the Immigration Judge.

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