A person physically in the United States, who expresses a fear of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group, is eligible to apply for asylum. While some of these categories are clear, others, such as what constitutes a ‘social group,’ is subject to significant litigation in federal courts. If a person receives a grant of asylum, he or she will subsequently be able to apply for adjustment of status (green card).
- Be outside their country of nationality. Asylees are by definition in the United States and thus necessarily outside their country of nationality. INA § 101(a)(42)(A).
- Be afraid of persecution by the government in the native country. Torture, for example, is persecution recognized under the law, while harassment or discrimination is almost never found to be a kind of persecution. However, the cumulative effect of various types of harm can be persecution when added together, such as economic disadvantage (unable to obtain gainful employment), interference with one’s right to privacy, substandard living conditions, deprived of higher education, and/or ostracized by society. Where these lines are drawn is different in each case.
- Be harmed or fear harm by parts of the government. The police and the army are parts of the government. Harm by right-wing or left-wing political groups or religious zealots that the government is ‘unable or unwilling to control’ also meets the demands of asylum laws.
- Be affected by at least one of several defined conditions. As suggested above, these conditions are: political opinion, race, religion, nationality, and social group. The last category, social group, usually refers to people with certain characteristics that a particular society might lump together and about which it generally has an unfavorable attitude, such as homosexuals. The law generally does not include people who fled their homes due to civil wars, generalized violence, or criminal prosecution. However, one of these reasons may suffice for asylum if it can be connected to one of the five listed conditions.
- Not be a danger to the community. Finally, international law recognizes that countries have the right to exclude asylum seekers who may be a danger to society. Those excluded are those who have committed ‘particularly serious crimes,’ including aggravated felonies as defined in INA § 101(a)(43), pose threats to national security, or who have committed war crimes or ‘crimes against humanity.’