Immigration 101: Asylum: Other Requirementsv

Past persecution, well-founded fear of future persecution, and membership in a statutorily protected group are the two most widely-recognized requirements for a grant of asylum. Now let’s talk a bit about the three other requirements:

The Government is Unable or Unwilling to Control the Perpetrators

To qualify for asylum, you must show that the government of your home country was either responsible for the persecution you suffered, or that it was “unable or unwilling to control” the groups or people who were responsible. This means that if you were attacked by a private citizen in your home country, and that person was punished by the criminal justice system, you would probably not be eligible for asylum, because the government was able and willing to control the person who attacked you. However, if you went to the local police station to report the attack, and the police refused to investigate it, you would have strong evidence that the government was unwilling to protect you.

The Threat of Persecution is Country-Wide

To be eligible for asylum, you must show that you would face persecution throughout your home country. You are not eligible if there are places you could go in your home country where you would be safe from your persecutors. If your asylum claim is based on a threat of persecution by members of the government, the court must assume that the threat of harm is country-wide, unless convincing evidence shows that the threat is limited to one area. If you fear being harmed by private citizens, you must show that those individuals would be able to find you and harm you, no matter where you went in your home country.

Asylum Should be Granted as a Matter of Discretion

Even if you meet all the requirements of asylum, an immigration judge gets the final say on whether or not to grant your claim. Asylum is a discretionary (up to the judgment of a person or agency) remedy, which means that the immigration judge has the authority to deny your claim for other reasons that he or she thinks are relevant. Although asylum is rarely denied for this reason, it is possible if you have significant negative equities (things that tip the balance of factors in your case against you), such as a long criminal record, a history of drug abuse, or if there is evidence that you provided support for a terrorist group or committed immigration fraud. Some of these factors may be outweighed by positive equities (things that tip the balance of factors in your case in your favor), such as having been in the US for many years, or having strong family ties in this country.

This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.

The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.


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